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 are often merely ceremonial, 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. Or the president may announce that he will interpret the law to avoid constitutional difficulties that he perceives.

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; even scholars occasionally make this mistake. This website presents a document as a signing statement only if the Daily or Weekly Compilation of Presidential Documents, publications issued by the Office of the Federal Register in the Government Printing Office, categorizes the document as a signing statement.

Other Sources Providing Definitions of Signing Statements

In April, 2007, the Library of Congress posted a useful short guide to signing statements.

For a more comprehensive definition of signing statements, read the introduction of Presidential Signing Statements: Constitutional and Institutional Implications, CRS Report for Congress RL33667 (updated September 17, 2007).

In a letter opinion issued 18 June 2007, the Government Accountability Office (GAO) provided an excellent background summary of signing statements that begins with this sentence: "There is no established definition of 'signing statement.'" See GAO Letter Opinion B-308603, Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts, pp. 2 and 3 (June 18, 2007).

Here's a very brief explanation of signing statements from Cheryl Nyberg, at the University of Washington School of Law.
 

This Website

This website provides all signing statements issued since January of 2001, and the signing statements are multiple-sourced. This website:

(1) captures (and, thus, fixes) the text of each signing statement that is published on the White House website;

(2) provides a live link to the same statement at the White House website, when possible;

(3) provides a live link to the text version of the signing statement at Office of the Federal Register's (OFR's) online Daily or Weekly Compilation of Presidential Documents; and

(4) provides PDF files of the statements (downloaded from the OFR's WCPD or DCPD and stored here).

Multiple-sourcing is provided for two reasons. First, it helps readers verify the text of the signing statements. Second, during the Bush administration, the exact number of signing statements became rather controversial. By providing all available official sources for the statements, this website helped settle the question.

The White House Website

Administration of George W. Bush

The last administration posted almost all of President Bush's signing statements on the White House website. That website became defunct (unavailable to the public) on January 20, 2009. However, I copied the text of the signing statements from the Bush White House website between 2006 and 2008, so the White House text is still available here, on this website.

Administration of Barack Obama

President Obama issued his first signing statement on February 17, 2009. As of March 30, 2009, this signing statement cannot be found on the White House website; it is available, so far, only from the OFR's Daily Compilation of Presidential Documents.

President Obama's subsequent signing statements have appeared on the White House website, under "Official Statements" in the section entitled "Briefing Room."

Government Printing Office Publications

The Weekly Compilation of Presidential Documents

Until 2009, signing statements were published in the "Weekly Compilation of Presidential Documents (WCPD)," issued by the Government Printing Office (GPO). Each new issue of the Weekly Compilation was typically posted one to three weeks following the week to which it applied.

The GPO's New Daily Compilation of Presidential Documents

Shortly after President Obama was sworn in, the GPO launched a new publication called the "Daily Compilation of Presidential Documents." It replaces the Weekly Compilation, and the purpose is to make presidential documents available to the public more quickly.

Guide from the University of Chicago

The University of Chicago Law Library has a very helpful guide to locating presidential documents, including signing statements. Most of the resources listed there are more easily accessed by attorneys than by members of the public. Access to the source (e.g., print publications by West, or subscription-only online legal databases such as Westlaw or LEXIS-NEXIS) can be expensive.

 

American Presidency Project: 1929 to present

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. Because the signing statements can be difficult to understand without the laws to which they refer, this website provides the full text of the laws affected by Barack Obama's and George W. Bush's signing statements.

In sum, if you want to see Bill Clinton's and Ronald Reagan's signing statements, use the American Presidency Project's website. If you want to read George W. Bush's and Barack Obama's signing statements and the laws to which they pertain, this website is a better choice.

The Daily and Weekly Compilation of Presidential Documents: 1993 to present

The online version of Weekly Compilation of Presidential Documents (WCPD) published presidential signing statements from 1993 to early 2009. The online WCPD is searchable from 1993 through 2009, but it is only browsable after 2001. To locate the signing statements in the online WCPD from 1993 to 2000, use the search function at the WCPD website.

To locate the signing statements in the online WCPD from 2001 to 2009, open each weekly issue and scan the contents for "Bill Signings." (Of course, this website has already collected all WCPD signing statements from 2001 to present. You would have to browse over 400 WCPD files to find all of them.)

In January, 2009, the Daily Compilation of Presidential Documents (DCPD) supplanted the Weekly Compilation. The new DCPD indexes signing statements under the heading "Bill Signings and Vetoes."

From his inauguration through his departure from office, Trump issued 70 signing statements. Trump's signing statements affected 646 specified provisions of law and made 70 mentions of unspecified provisions in 66 Congressional enactments, for a total of at least 716 objections.

For detailed information about how I arrived at these numbers, please consult this chart.

For information about counting methods for signing statements, please see the FAQ below ("How many signing statements did George W. Bush issue?").

 

From his inauguration through December 16, 2016, President Obama issued 37 signing statements affecting 114 specified provisions and making eight mentions of unspecified provisions of law in 37 Congressional enactments. Obama issued 13 rhetorical signing statements, 23 constitutional signing statements, and one statement remarking on an "inadvertent technical drafting error" in the affected bill.

For detailed information about how I arrived at these numbers, please consult this chart.

For information about counting methods for signing statements, please see the FAQ below ("How many signing statements did George W. Bush issue?").

 

Summary Answer

George W. Bush issued 161 signing statements affecting over 1,100 provisions of law in 160 Congressional enactments. 

Counting Methods

Two types of "metrics" surfaced in writings about signing statements during the Bush administration. One approach is to count the signing statement documents that a president issues when signing Congressional enactments. The second approach is to count the provisions of law challenged by those documents.

The recent trend (and better practice) is to report both numbers.

Number of Signing Statement Documents

If all signing statements were made available to the GPO's Weekly Compilation, George W. Bush issued 161 signing statement documents during his term. For a list of the signing statements, click here. Here is my count by year of issuance: 

2001	24
2002	34
2003	28	two signing statements issued for P.L. 108-7
2004	25	two signing statements issued for P.L. 108-375
2005	14
2006	23
2007	8
2008	5
	161	Total

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 issued 161 signing statements affecting over 1,100 provisions of federal law. The full list of Bush's signing statements is here.

 

There are two approaches to counting signing statements. The first is to count the documents issued by the president that are categorized as signing statements. The second is to count each provision of law affected by a single signing statement document as a separate statement. Under this second method, a single signing statement document that challenges 40 provisions of law within one Congressional enactment is reported as 40 signing statements.

In early 2006, Charlie Savage, then with the Boston Globe, Phillip Cooper, PhD, Professor of Public Administration in the Hatfield School of Government at Portland State University, and Christopher Kelley, PhD, Professor of Political Science at the University of Miami-Ohio, examined the signing statement documents existing at that time and found challenges to about 750 Congressional enactments within those documents. For instance, Professor Kelley found challenges to about 50 laws in a single signing statement (for the Consolidated Appropriations Act of 2004).

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 failed to update their numbers after the early-2006 Boston Globe article, and some still do not distinguish between the signing statement documents and the number of laws challenged. Therefore, reports of 750 signing statements remained fairly common throughout the rest of Bush's term.

Recent reports that George W. Bush issued 1,200 signing statements are based on a count provided by Professor Christopher Kelly to the New York Times.

I am reporting that President Bush issued 161 signing statements challenging over 1,100 provisions in 160 enactments based on both Professor Kinkopf's and Professor Kelley's counts.

See the FAQ above: "How Many Signing Statements Did George Bush Sign?"

Summary

Before George W. Bush's administration, signing statements had received little attention outside academia. Thus, it took scholars, lawyers, members of Congress, and reporters some time to establish methods and conventions for counting and categorizing signing statements. Eventually, many people concluded that the controversy was as much about how President Bush used signing statements as about how many he issued.

Brief History of the Controversy

When George W. Bush's signing statements began receiving media attention in 2006, there was a great deal of controversy about how many signing statements he had issued. 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 official, multiple-sourced 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).

In January of 2007, the Department of Justice again 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").

Congressional Research Service

The confusion cleared in the fall of 2007 when the Congressional Research Service reported that George W. Bush had issued 152 signing statements. See, CRS Report RL33667.

My counts squares with the CRS. George W. Bush issued nine signing statements after the CRS count of September, 2007. Three signing statements (2001-02, 2004-17, 2004-14) were expressly identified as signing statements by the WCPD but never appeared on 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).

 

Summary Answer

It is often claimed that George W. Bush issued more signing statements than all previous presidents combined.  If one merely counts the "signing statement" documents (161), the Bush administration was not very different from previous recent administrations. If you count the number of provisions of law challenged by the Bush signing statements (over 1,100 provisions), the statement is fair.

However, the question is somewhat misleading. The better approach is to compare how various presidents have used signing statements.  

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 George W. Bush's use of signing statements to the three previous administrations, reporting that:

34% of President Reagan's signing statements raised constitutional objections

47% of President George H. W. Bush's signing statements raised constitutional objections

18% of President Clinton's signing statements raised constitutional objections

78% of President George W. Bush's signing statements raised constitutional objections

Other Reports of Importance

Two other reports focus on how presidents have used signing statements, as opposed to how many they've issued.

Report of the ABA "Task Force on Presidential Signing Statements and the Separation of Powers Doctrine"

GAO Letter Opinion B-308603

David Addington

Several news articles reported that David Addington, Chief of Staff to Vice President Dick Cheney, drafted signing statements for George W. Bush. 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).

The OMB and Justice Department

During the Bush administration, signing statements originated in the Justice Department and the Office of Management and Budget (OMB) and were reviewed by White House Staff Secretary's Office. For testimony to this effect, 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, pp. 24 et seq.).

The Obama administration may continue this practice. In a recent recruitment posting on the OMB website, the job duties listed for the position of OMB legislative analyst include preparing "memoranda (including signing statements and veto messages) to [sic] the President on enrolled bills." The job posting is available here (downloaded from the OMB website on March 15, 2009, from http://www.whitehouse.gov/omb/assets/ recruitment_2009/omb-09-33.pdf ).

Statements of Administration Policy

It is also instructive to read the Bush 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 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 laws that were 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 did not post a SAP for that bill in the OMB section of the White House website.)

 

 

Intro

Many scholars, lawyers, reporters, commentators, and members of Congress regarded George W. Bush's use of signing statements as a constitutional crisis. Prominent individuals -- across the entire political spectrum -- expressed concern that the Bush administration's use of signing statements was an attempt to shift 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 concluded that the Bush administration tried to alter our concept of the powers of Congress and the presidency and to institutionalize a view of expansive executive authority.

The following explains the issues. I have also provided a list of links for those who want more in-depth reading.

Separation of Powers, Rule of Law

Our government has three branches. The legislative branch (Congress) enacts law. The executive branch (the president) carries out or "executes" the laws. The judicial branch (the courts) applies the law to individual cases and controversies and ensures, 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 judicial branch.

The Constitution directly addresses the president's power regarding Congressional enactments that the president does not favor: the president can veto any law that Congress presents for signing. Congress has the power to override that veto by re-enacting the law by a super majority. (U.S. Constitution, Article I, § 7, Clause 3)

Throughout our history, this has usually been the end of such controversies. If Congress can muster a super majority to re-enact a law, the president must accept and administer that law, unless existing court precedent or plain language of the Constitution indicates constitutional infirmity. When a president fails to challenge in court a law that he disfavors, 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)

Many scholars, lawyers, and reporters have asserted that President Bush used signing statements as a presidential line item veto. (The line-item veto was declared unconstitutional in Clinton v. City of New York, 524 U.S. 417 (1998).)

As you read the Bush signing statements, note 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, the Bush signing statements seemed 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 have been withheld or reduced if they were not attached to substantive limits on the Executive's power to spend that money.  

The "Unitary Executive"

During the Bush administration, signing statements were one cornerstone of a controversial legal theory called "the unitary executive branch." In his 161 signing statements, George W. Bush made 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. Among them was John Yoo. The "unitary executive" theory, at least as applied by Bush administration officials, advances a view about the relative powers of Congress and the president 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. 

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 enacted numerous laws requiring federal officials to report information to Congress, and President Bush issued signing statements for many such laws. The obvious question is whether signing statements 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:

Section 5301 of IRTPA provides for some exceptions from the new interview requirements. In addition, as the President noted in the signing statement for IRTPA, the interview requirement is viewed ‘‘as advisory’’ with respect to foreign diplomats or foreign officials, because it otherwise would impermissibly burden the President’s constitutional authority to conduct foreign relations. Therefore, the regulations continue to permit exemptions from the interview requirements of persons in A–1, A–2, C–2, C–3, G–1, G–2, G–3 G–4, NATO–1, NATO–2, NATO–3, NATO–4, NATO–5, or NATO 6 classifications, and applicants for diplomatic or officials visas as described in 22 CFR 41.26 and 41.27.

See, 71 Fed. Reg. 75662 (December 16, 2006) (emphasis added). Clearly, some executive branch officials were, at least occasionally, implementing Congressional enactments in accordance with signing statements during the Bush administration.

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 tried to establish whether -- or how often -- signing statements actually caused executive branch agencies or officials to fail to comply with laws during the Bush administration. 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 and open the item entitled "FOIA Request to DOJ Regarding Signing Statement for the 21st Century DOJ Appropriations Authorization Act (P.L. 107-273)."

Congress made a few notable attempts to examine how often the Bush administration failed to execute laws as written:

GAO Letter Opinion B-308603, Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts  (June 18, 2007) (abstract at GAO website)

GAO Report to Congressional Requesters B-309928, Presidential Signing Statements--Agency Implementation of Ten Provisions of Law (December 20, 2007) (abstract at GAO website)

 

Overview

The short answer is: oversight.

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. CRS Report for Congress RL30240, Congressional Oversight Manual (updated May 1, 2007) (source: Federation of American Scientists).

CRS Approach to Oversight

The early CRS report on presidential signing statements concluded, at page 30:

[A] robust oversight regime focusing on substantive executive action, as opposed to the vague and generalized assertions of authority typical of signing statements, might allow Congress in turn to more effectively assert its constitutional prerogatives and ensure compliance with its enactments.

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:

We found that in 11 signing statements the President singled out 160 specific provisions from the fiscal year 2006 appropriations acts. We examined 19 of these provisions to determine whether the agencies responsible for their execution carried out the provisions as written. 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 did demonstrate that a significant number of provisions of law targeted by signing statements were not executed as written.

Judge Wald's View

The early CRS report on presidential signing statements 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.

Judge 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.

Judge Wald addressed the effect that Bush's signing statement for the Sudan Accountability and Divestment Act had on states that wanted 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 law or to question whether the law can bind anyone in the Executive Branch, it seems obvious that uncertainty must 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.

CRS Reprise

However, a passage from the updated CRS report is nothing short of astonishing -- the last sentence deserves a second, third, and fourth reading:

It does not seem likely that a reduction in the number of challenges raised in signing statements, whether caused by procedural limitations or political rebuke, will necessarily result in any change in a President’s conception and assertion of executive authority. Accordingly, a more effective congressional response might be to focus on any substantive actions taken by the Bush II Administration that are arguably designed to embed that conception of presidential power in the constitutional framework.

See, the updated CRS report, at p. 29 (emphasis added). 

 

 

Congressional Responses During the Bush Administration: Hearings, Reports, and Proposed Legislation

The possibility that a president was 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.

2006

• On 25 May 2006, Representative Shelia Jackson-Lee (D-Tx) introduced H.R. 5486,  the stated purpose of which is to "prevent the President from encroaching upon the Congressional prerogative to make laws." The GPO print of the bill is here. The sponsor's remarks on introduction are here. No action was taken on the bill after it was referred to the House Committee on Government Reform in May, 2006.
   

• 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

• On 5 January 2007, Representative Shelia Jackson-Lee (D-Tx) introduced H.R. 264, the stated purpose of which is to "prevent the President from encroaching upon the Congressional prerogative to make laws." As introduced, § 3 of the act provides: “None of the funds made available to the Executive Office of the President, or to any Executive agency (as defined in section 105 of title 5 of the United States Code), from any source may be used to produce, publish, or disseminate any statement made by the President contemporaneously with the signing of any bill or joint resolution presented for signing by the President.” The GPO print of the bill is available here. The bill was referred to the House Committee on Oversight and Government Reform.
   

• On 31 January 2007, the Democratic-led House Judiciary Committee conducted an oversight hearing on "Presidential Signing Statements under the Bush Administration." Statements and testimony from the hearing are available here. The Boston Globe reported: “The new chairman of the House Judiciary Committee, John Conyers Jr. of Michigan, said yesterday that he is launching an aggressive investigation into whether the Bush administration has violated any of the laws it claimed a right to ignore in presidential ‘signing statements.’”
   

• On 18 June 2007, the GAO released a letter opinion, requested by Senator Robert Byrd (D-WVa) and Representative John Conyers (D-MI): "Presidential Signing Statements Accompanying the Fiscal Year 2006 Appropriations Acts."  The entire letter opinion is available here.
   

• On 3 July 2007, Senator Arlen Specter (R-Pa) introduced S. 1747 in the 110th Congress concerning presidential signing statements. The GPO print of the bill, as introduced, is available here. Senator Specter's press release concerning the bill is available here. S. 1747 was referred to the Committee on the Judiciary. On 16 July 2007, Representative Carol Shea-Porter (D-NH) introduced a companion bill (HR 3045) in the House of Representatives. The GPO print of HR 3045, as introduced, is available here. HR 3045 was referred to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
   

• On 3 August 2007, Senator Russ Feingold (D-WI) introduced S. Res. 303, to censure the President and Attorney General. Section 1(e) of the proposed resolution contains significant proposed findings concerning signing statements. The GPO print of the resolution, as introduced, is available here. The resolution was referred to the Senate Judiciary Committee. Representative Maurice Hinchey (D-NY) introduced a companion resolution, HR 626, in the House on 4 August 2007. HR 626 was referred to the House Judiciary Committee and later, on 10 September 2007, to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
   

• On 15 October 2007, Senator Ron Paul (R-TX) introduced HR 3835, entitled the ‘‘American Freedom Agenda Act of 2007,’’ the stated purpose of which is: "to restore the Constitution’s checks and balances and protections against government abuses as envisioned by the Founding Fathers." The bill addresses, among other topics, presidential signing statements. The GPO print of the full text of HR 3835 as introduced is available here. Senator Paul's remarks upon introduction of the bill are available here (Part 1) and here (Part 2). The most recent action on the bill was referral to the House Intelligence (Permanent Select) Committee (October 15, 2007).

2008

• On 8 February 2008, the House Financial Services Committee, chaired by Barney Frank (D-Mass), held a hearing on the "Negative Implications of the President’s Signing Statement on the Sudan Accountability and Divestment Act." Witness statements, letters concerning the Bush administration's refusal to testify, and an archived web cast of the hearing are available at the Committee's website.

• On 11 March 2008, the Oversight and Investigations Subcommittee of the House Armed Services Committee met to hear testimony on the impact of the Presidential signing statement on the Department of Defense’s implementation of the Fiscal Year 2008 National Defense Authorization Act. Witness statements and transcripts are available here.  The Subcommittee released its final report in August, 2008.
   

• On 6 May 2008, the House Judiciary Committee's Subcommittee on Commercial and Administrative Law held a "Hearing on the Rulemaking Process and the Unitary Executive Theory." Witness statements and a webcast of the hearing are available here.

• On 8 May 2008, Representative Walter B. Jones (R-NC) introduced H.R. 5993, the Presidential Signing Statements Act. Representative Jones's press release of May 12 is available here. The GPO print of the bill, as introduced, is available here. The bill was referred to the House Committee on the Judiciary.
   

• On 9 June 2008, Representative Dennis Kucinich (D-Ohio) introduced H.R. 1258, containing 35 articles of impeachment against President George W. Bush.  Article XXVI is entitled "Announcing the Intent to Violate Laws with Signing Statements, and Violating Those Laws." The full text of HR 1258 is available at Rep. Kucinich's website. On June 11, the measure was referred to committee.
   

• On 25 July 2008, the House Judiciary Committee held an oversight hearing on "Executive Power and Its Constitutional Limitations." Signing statements were among many issues addressed during the hearing. A list of witnesses and their prepared statements, as well as streaming video of the hearing, are available here. The hearing included HR 1258, the articles of impeachment introduced by Rep. Dennis Kucinich (D-OH) in June, 2008. However, the hearing did not provide for a  vote on HR 1258. Rep. Kucinich discussed his article of impeachment against President Bush.

2009

• On January 13, 2009, the House Judiciary Committee released a report containing "47 separate recommendations designed to restore the traditional checks and balances of our constitutional system."

The 487-page report devotes a section to signing statements under the heading "Misuse of Executive Branch Authority" on pages 187-189.

It presents findings concerning abuse of signing statements during the Bush administration at pages 203 and 204. And, finally, it presents this finding, on page 285:

The President should end abuse of presidential signing statements. President Obama should fulfill his pledge that he will “not use signing statements to nullify or undermine congressional instructions as enacted into law” as has occurred under the Bush Administration.

He should also make clear that, despite his predecessor’s signing statements, he intends to fully execute existing laws.

The press release and the full report are available at the Judiciary Committee's website. The report is also archived here.

• On April 23, 2009, Sen. Arlen Specter introduced S. 875, a bill to "regulate the judicial use of presidential signing statements in the interpretation of Acts of Congress." The full text of the GPO print of the bill, as introduced, is available here. The bill has two co-sponsors: Jon Tester (D-MT) and Chuck Grassley (R-IA). The bill was referred to the Senate Committee on the Judiciary on the same day it was introduced.

  Senator Specter's remarks upon introducing the bill are available here (source: GPO print, Congressional Record, pp. S4676 to 4678).

 

 

Congressional Responses During the Obama Administration: Hearings, Reports, Statements, and Legislation

2009

• On January 13, 2009, the House Judiciary Committee released a report containing "47 separate recommendations designed to restore the traditional checks and balances of our constitutional system."

The 487-page report devotes a section to signing statements under the heading "Misuse of Executive Branch Authority" on pages 187-189.

It presents findings concerning abuse of signing statements during the Bush administration at pages 203 and 204. And, finally, it presents this finding, on page 285:

The President should end abuse of presidential signing statements. President Obama should fulfill his pledge that he will “not use signing statements to nullify or undermine congressional instructions as enacted into law” as has occurred under the Bush Administration.

He should also make clear that, despite his predecessor’s signing statements, he intends to fully execute existing laws.

The press release and the full report are available at the Judiciary Committee's website. The report is also archived here.

• On April 23, 2009, Sen. Arlen Specter introduced S. 875, a bill to "regulate the judicial use of presidential signing statements in the interpretation of Acts of Congress." The full text of the GPO print of the bill, as introduced, is available here. The bill has two co-sponsors: Jon Tester (D-MT) and Chuck Grassley (R-IA). The bill was referred to the Senate Committee on the Judiciary on the same day it was introduced.

  Senator Specter's remarks upon introducing the bill are available here (source: GPO print, Congressional Record, pp. S4676 to 4678).

• On July 9, 2009, The Hill newspaper reported that the House of Representatives passed an amendment seeking "to nullify Obama's signing statement by withholding funds from any agreement involving the Treasury Department that doesn't follow the conditions set out in the supplemental bill." The full article from The Hill is here.

  House Amendment 311 to H.R. 3081 (Department of State, Foreign Operations, and Related Programs Appropriations Act, 2010) provides:

  None of the funds made available in this Act may be used by the Secretary of the Treasury to negotiate an agreement in contravention of section 1626 or 1627 of the International Financial Institutions Act, section 1112 or 1403 of the Supplemental Appropriations Act, 2009 (Public Law 111–32), or the provision added to the end of title XVI of the International Financial Institutions Act by section 1404 of the Supplemental Appropriations Act, 2009 (Public Law 111–32).

  Section 7092 of H.R. 3081, as passed by the House of Representatives (source: GPO, July 12, 2009) (digitally signed by the GPO -- 200 pp.).

 

 

If you're confused, you have good reason. Congress enacted two pieces of legislation concerning the treatment of detainees, and George W. 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).

For the signing statement asserting the Executive's right to open mail without a warrant, click here. 

It does not appear that there was one. Please go here to read White House Press Secretary Tony Snow's remarks to the press about this question.