Friday, April 22, 2011

PRESIDENTIAL SIGNING STATEMENTS



Barack Obama issued 8 signing statements in 2009 (the first one was on 2/17/2009 - a month after being inaugurated), 6 in 2010, and 4 so far this year.

What is a Signing Statement?

A “Signing Statement” is a written comment issued by a President at the time of signing legislation.  Often signing statements merely comment on the bill signed, saying that it is good legislation or meets some pressing needs.  The more controversial statements involve claims by presidents that they believe some part of the legislation is unconstitutional and therefore they intend to ignore it or to implement it only in ways they believe is constitutional.  Some critics argue that the proper presidential action is either to veto the legislation (Constitution, Article I, section 7) or to “faithfully execute” the laws (Constitution, Article II, section 3).

The president's power to issue signing statements is based in Article II, Section 1 of the U.S. Constitution, which states that the president "shall take Care that the Laws be faithfully executed..." Signing statements are considered to be one way in which the president faithfully executes the laws passed by Congress. This interpretation is supported by the Supreme Court's 1986 decision in the case of Bowsher v. Synar, which held that "... interpreting a law enacted by Congress to implement the legislative mandate is the very essence of 'execution' of the law."

Purposes and effect of signing statements In 1993, the Department of Justice attempted to define the four purposes for presidential signing statements and the constitutional legitimacy of each:
A.    To simply explain what the bill will do and how it will benefit the people: No controversy here.
B.    To instruct the responsible Executive Branch agencies on how the law should be administered: This use of signing statements, says the Justice Department, is constitutional and is upheld by the Supreme Court in Bowsher v. Synar. Executive Branch officials are legally bound by the interpretations contained in presidential signing statements.
C.    To define the president's opinion of the law's constitutionality: More controversial than the first two, this use of the signing statement typically has one of at least three sub-purposes:
·         to identify certain conditions under which the president thinks all or parts of the law could be ruled unconstitutional
·         to frame the law in a manner that would "save" it from being declared unconstitutional
·         to state that the entire law, in the president's opinion, unconstitutionally usurps his authority and that he will refuse to enforce it

Through Republican and Democratic administrations, the Department of Justice has consistently advised presidents that the Constitution gives them the authority to refuse to enforce laws they believed to be clearly unconstitutional, and that expressing their intent through a signing statement is a valid exercise of their constitutional authority.

On the other hand, it has been argued that it is the president’s constitutional duty to veto and refuse to sign bills he or she believes to be unconstitutional. In 1791, Thomas Jefferson, as the nation’s first Secretary of State, advised President Washington that the veto “is the shield provided by the Constitution to protect against the invasions of the legislature of 1) the rights of the Executive  2) of the Judiciary  3) of the states and state legislatures.” Indeed, past presidents including Jefferson and Madison have vetoed bills on constitutional grounds, even though they supported the bills’ underlying purposes.

D.   To create a type of legislative history intended to be used by the courts in future interpretations of the law: Criticized as an attempt by the president to actually invade Congress' turf by taking an active part in the law-making process, this is clearly the most controversial of all the uses for signing statements. The president, they argue, attempts to amend legislation passed by Congress through this type of signing statement. According to the Justice Department, the legislative history signing statement originated in the Reagan Administration.

In 1986, then-Attorney General Meese entered into an arrangement with the West Publishing Company to have presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history. Attorney General Meese explained the purpose of his actions as follows: "To make sure that the President's own understanding of what's in a bill is the same . . . or is given consideration at the time of statutory construction later on by a court, we have now arranged with the West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means."

The Department of Justice offers views both supporting and condemning presidential signing statements through which presidents seem to take an active role in the lawmaking process:
In support: The president has a constitutional right and political duty to play a integral role in the legislative process. Article II, Section 3 of the Constitution requires that the president "shall from time to time . . . recommend to [Congress'] Consideration such Measures as he shall judge necessary and expedient." Further, Article I, Section 7 requires that to become and actual law, a bill requires the president's signature. "If he [the president] approve it he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated."

In his widely acclaimed "The American Presidency," 110 (2d ed. 1960), author Clinton Rossiter, suggests that over time, the president has become "a sort of prime minister or 'third House of Congress.' . . . [H]e is now expected to make detailed recommendations in the form of messages and proposed bills, to watch them closely in their tortuous progress on the floor and in committee in each house, and to use every honorable means within his power to persuade . . . Congress to give him what he wanted in the first place."

Thus, suggests the Justice Department, it may be appropriate for the president, through signing statements, to explain what his (and Congress') intention was in making the law and how it will be implemented, particularly if the administration had originated the legislation or played a significant part in moving it through Congress.

On the other hand: The argument against a president using signing statements to alter Congress' intent as to meaning and enforcement of new laws is once again based in the constitution. Article I, Section 1 clearly states, "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Not in a Senate and House and a president. Along the long road of committee consideration, floor debate, roll call votes, conference committees, more debate and more votes, the Congress alone creates the legislative history of a bill. It can also be argued that by attempting to reinterpret or even nullify parts of a bill which he has signed, the president is exercising a type of line-item veto, a power not currently bestowed on presidents.

Summary:
The recent use of presidential signing statements to functionally amend legislation passed by Congress remains controversial and is arguably not within the scope of powers granted to the president by the Constitution. The other less controversial uses of signing statements are legitimate, can be defended under the Constitution and can be useful in the long-term administration of our laws. Like any other power, however, the power of presidential signing statements can be abused.



The link below has many FAQ’s and an interactive chart where you can query a president/year for PSS’s and read the content.  It’s quite informative and well worth a bookmark.






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