Presidential Signing Statements

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Overview

This guide is intended to serve as an introduction to research on official pronouncements issued by the President of the United States at or near the time a bill is signed into law. Such pronouncements are called signing statements. They have been published in the Weekly Compilation of Presidential Documents (discontinued in January 2009) and the Public Papers of the Presidents of the United States. Signing statements have also been published in U.S. Code Congressional and Administrative News (West Group) since 1986.

The Executive Branch, which is headed by the President, is tasked by the Constitution with the duty "to take care that the laws be faithfully executed." (Article II, Section 3 (external link)). This language is often referred to as the "Take Care Clause." Congress passes laws and the President enforces them.

If the President feels a law is unconstitutional or otherwise ill-advised, the President can veto the law instead of signing it. At this point Congress can respond in various ways. It is also argued that the President has a duty not to sign a law which in a given circumstance would be unconstitutional, because the President takes an oath to "preserve, protect and defend" the Constitution. (Article II, Section 1 (external link)). The U.S. Supreme Court is the ultimate arbiter of whether a law is constitutional or not (Marbury v. Madison (external link), 5 U.S. 137 (1803) (external link).

Unlike vetoes, signing statements are not part of the legislative process as set forth in the Constitution, and have no legal effect. A signed law is still a law regardless of what the President says in an accompanying signing statement. In 1972, after President Nixon in a signing statement indicated that a provision in a bill submitted to him did not "represent the policies of this Administration" and was "without binding force or effect," a federal district court held that no executive statement, even by a President, "denying efficacy to the legislation could have either validity or effect." DaCosta v. Nixon, 55 F.R.D. 145, 146 (E.D.N.Y. 1972).

Signing statements have been used since the early 19th century by Presidents to comment on the law being signed. Such comments can include giving the President's interpretation of the meaning of the law's language; asserting objections to certain provisions of the law on constitutional grounds; and stating the President's intent regarding how the President intends to execute, or carry out, the law, including giving guidance to executive branch personnel.

Signing statements have played a role in conflicts between the Executive and Legislative branches in the past. For example, President Franklin Roosevelt indicated in a signing statement in 1943, during World War II, that he felt Section 304 of the Urgent Deficiency Appropriations Act of 1943 (ch. 218, 57 Stat. 431, 450 (1943)) was unconstitutional, but that he had no choice but to sign the bill "to avoid delaying our conduct of the war." He indicated that he would enforce the law, but if the law was attacked in court, the Attorney General was to side with the plaintiff and attack the statute rather than defend it. When such a lawsuit did occur, Congress had to appoint a special counsel to defend the statute in court. The matter ultimately went to the Supreme Court, which agreed with President Roosevelt and struck down the provision, citing his signing statement in the Court's opinion (United States v. Lovett, 328 U.S. 303 (1946) (external link).

The use of signing statements by Presidents, originally a rare occurrence, has increased gradually over time, becoming increasingly prevalent starting with the Reagan Administration. The Reagan Administration actively sought to encourage courts to consider signing statements when interpreting statutory law; one key step was an agreement with West Publishing Company to include signing statements in West's U.S. Code Congressional and Administrative News publication, a commonly used source of legislative history. And in fact, two Supreme Court cases decided during the Reagan Administration did make reference to signing statements, although the general trend has continued to be that signing statements are rarely used by courts when interpreting federal statutes.

All four Presidents since President Reagan have issued signing statements, and increasingly these statements have contained one or more challenges or objections to the laws being signed. President George W. Bush objected to over 700 provisions of law, usually on the grounds that they infringe on the authority granted to the Executive Branch by the Constitution. Some of these objections may imply that the President does not intend to execute these provisions of law.

Commentators and journalists, including the American Bar Association (external link), have taken issue with the increasing use of signing statements by Presidents to object to provisions of law, arguing that in effect such statements constitute a veto to which Congress cannot respond, and therefore represent a line item veto. Line item vetoes were ruled unconstitutional by the Supreme Court (Clinton v. City of New York, 524 U.S. 417 (1998) (external link).

The growing use of signing statements has attracted the attention of Congress: the 110th Congress witnessed the introduction of a House Bill (H.R. 264) intended to restrain the President's use of signing statements in general, as well as a Senate Resolution (S. Res. 22) explicitly rejecting particular interpretations of the President's signing statement for Public Law 109-435.

The Law Library of Congress has compiled the following selective bibliography of resources relating to presidential signing statements. The bibliography includes examples of recent laws with signing statements, Congressional Hearings, court cases where the signing statements were discussed, law journal articles, selective press releases, news articles and other secondary materials. New documents and sources will be added to keep the bibliography up to date.

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Constitutional Provisions

1. The President has power to veto any bill passed by Congress. Constitution of the United States, Article I, section 7. Available online (external link).

2. Presidential authority to confirm that the laws are faithfully executed, and "shall Commission all the officers of the United States." Constitution of the United States, Article II, section 3. Available online (external link).

Legislative Material

Recent laws with Presidential Signing Statements:

John Warner National Defense Authorization Act for Fiscal Year 2007, Public Law No. 109-364 (PDF), 120 Stat. 2083, October 17, 2006. Signing Statement (PDF).

Northern California Coastal Wild Heritage Wilderness Act of 2006, Public Law No. 109-362 (PDF), 120 Stat. 2064, October 17, 2006. Signing Statement (PDF).

Department of Homeland Security Appropriations Act of 2007, Public Law No. 109-295 (PDF), 120 Stat. 1355, October 4, 2006. Signing Statement (PDF).

Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act of 2006, Public Law No. 109-148 (PDF), 119 Stat. 2680, December 30, 2005.Signing Statement (PDF).

Introduced Bills in the 110th Congress:

H.R. 264: To prevent the President from encroaching upon the Congressional prerogative to make laws, and for other purposes. Available online.

S.Res.22: A resolution reaffirming the constitutional and statutory protections accorded sealed domestic mail, and for other purposes. Available online.

Introduced Bills in the 109th Congress:

S. 3731: A bill to regulate the judicial use of presidential signing statements in the interpretation of Acts of Congress. Available online.

H.R. 5486: A bill to prevent the Executive from encroaching upon the Congressional prerogative to make laws, and for other purposes. Available online.

H.J. Res. 87: A bill 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, establishing expedited procedures for the consideration of legislation in the House of Representatives in response to such a determination, and for other purposes. Available online.

H.J. Res. 89: A bill requiring the President to notify Congress if the President makes a determination to ignore a duly enacted provision of law, establishing expedited procedures for the consideration of legislation in the House of Representatives in response to such a determination, and for other purposes. Available online.

Congressional Hearings:

United States. Congress. House. Subcommittee on Legislative and Budget Process of the Committee on Rules, Executive Orders : hearing before the Subcommittee on Legislative and Budget Process of the Committee on Rules, House of Representatives, One Hundred Sixth Congress, first session, on the impact of executive orders on the legislative process, executive lawmaking? 106th Congress, 1st. Session. October 27, 1999, Washington: U.S. GPO, 1999. Available online (PDF).
KF27 .R873 1999

United States. Congress. Senate. Committee on Judiciary, The Use of Presidential Signing Statements. 109th Congress, 2nd Session. June 27, 2006. No transcript available at this time. Witness list and written statements available online.

United States. Congress. House. Committee on the Judiciary, Presidential Signing Statements under the Bush Administration: Hearing before the House of Representatives Committee on the Judiciary, 110th Cong. 1st Session. January 31, 2007. No transcript available at this time. Witness list and written statements available online.

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Executive Branch Material

Memorandum from Samuel A. Alito, Jr., Deputy Assistant Attorney General, to the Litigation Strategy Working Group, U.S. Department of Justice, Using Presidential Signing Statement to Make Fuller Use of the President's Constitutionally Assigned Role in the Process of Enacting Law (1986). Available online (PDF).

Memorandum from William P. Barr, Assistant Attorney General, to General Counsel's Consultative Group, Common Legislative Encroachments on Executive Branch Authority, 13 U.S. Op. Off. Legal Counsel, 248 (1989).
KF5050 .A5534

Memorandum from Walter Dellinger, Assistant Attorney General, to Bernard N. Nussbaum, Counsel to the President, The Legal Significance of Presidential Signing Statements, 17 U.S. Op. Off. Legal Counsel 131 (1993). Available online.
KF5050 .A5534

Memorandum from Walter Dellinger, Assistant Attorney General, Department of Justice, to Honorable Abner J. Mikva, Counsel to the President Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 U.S. Op. Off. Legal Counsel 199 (1994). Available online.
KF5050 .A5534

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Recent Judicial Branch Material

Clinton v. City of New York, 524 U.S. 417 (1998): Only Congress may repeal legislation and the President may not. There is no constitutional authorization for the President to amend or repeal. Available online (external link).

DaCosta v. Nixon, 55 F.R.D. 145, 146 (E.D.N.Y. 1972): In 1972, after President Nixon in a signing statement indicated that a provision in a bill submitted to him did not "represent the policies of this Administration" and was "without binding force or effect," a federal district court held that no executive statement, even by a President, "denying efficacy to the legislation could have either validity or effect."

United States v. Lovett, 328 U.S. 303 (1946): President Franklin Roosevelt indicated in a signing statement in 1943, during World War II, that he regarded Section 304 of the Urgent Deficiency Appropriations Act of 1943 (Ch. 218, 57 Stat. 431, 450 (1943)) to be unconstitutional, but that he had no choice but to sign the bill "to avoid delaying our conduct of the war." The matter went to the United States Supreme Court. The Court, agreed with President Roosevelt and struck down the statutory provision, citing his signing statement in its opinion. Available online (external link).

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Books

Phillip J. Cooper, By Order of the President: The Use and Abuse of Executive Direct Action, Lawrence: University Press of Kansas, 2002.
KF5053 .C578 2002

Louis Fisher, Constitutional Conflicts Between Congress and the President, 5th Ed., Lawrence, Kan.: University Press of Kansas, 2007.
KF4565 .F57 2007

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Journal And News Articles

Journal Articles:

Curties A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, Duke Law School Legal Studies Paper No. 121 (2006). Available online (external link) (PDF).

Christine E. Burgess, When May a President Refuse to Enforce the Law? 72 Tex. L. Rev. 631(1994).
K24 .E93

Steven G. Calabresi and Daniel Lev, The Legal Significance of Presidential Signing Statements, 4 The Forum, no. 8 (2006).
K2 .E39

Kristy L. Carroll, Whose Statute Is It Anyway - Why and How Courts Should Use Presidential Signing Statements When Interpreting Federal Statutes, 46 Cath. U. L. Rev. 475 (1997).
K3 .A79

Philip J. Cooper, George W. Bush, Edgar Allen Poe and the Use and Abuse of Presidential Signing Statements, 35 Presidential Studies Quarterly 517 (2005).
JK501 .C44

Frank B. Cross, The Constitutional Legitimacy and Significance of Presidential Signing Statements, 40 Admin. L. Rev. 209 (1988).
K1 .D56

Louis Fisher, Signing Statements: Constitutional and Practical Limits (PDF, 179KB), 16 William & Mary Bill of Rights J. 183 (2007).

Louis Fisher, Signing Statements: What to Do? 4 The Forum, no.2 (2006).
K2 .E39

Marc N. Garber & Kurt A. Wimmer, Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power, 24 Harv. J. on Legis. 363. (1987).
K8 .A684

Nelson Lund, Lawyers and the Defense of the Presidency, 1995 B.Y.U.L. Rev. 17 (1995).
K2 .R48

Christopher N. May, Presidential Defiance of 'Unconstitutional' Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865 (1994).
K8 .A8

Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189 (2006).
K3 .O355

Morton Rosenberg, Congress's Prerogative Over Agencies and Agency Decision Makers: The Rise and Demise of the Reagan Administration's Theory of the Unitary Executive, 57 Geo. Wash. L. Rev. 627 (1989).
K7 .E63

Brad Waites, Note, Let Me Tell You What You Mean: An Analysis of Presidential Signing Statements,
21 Ga. L. Rev. 755 (1987).
K7 .E67

Christopher S. Yoo et al., The Unitary Executive in the Modern Era, 90 Iowa L. Rev. 601(2005).
K9 .O88

News Articles and Blog Postings:

Michael Abramowitz, Bush's Tactic of Refusing Laws Is Probed, Washington Post, July 24, 2006, at A05. Available online (external link).

Elisabeth Bumiller, White House Letter; For President, Final Say on a Bill Sometimes Comes After the Signing, New York Times, January 16, 2006, at A11.

Robert Pear, Legal Group Says Bush Undermines Law by Ignoring Select Parts of Bills, New York Times, July 24, 2006, at A12. Available online (external link).

Charlie Savage, Bush Challenges Hundreds of Laws; President Cites Powers of His Office, Boston Globe, April 30, 2006, at A1. Available online (external link).

Charlie Savage, Scalia's Dissent Gives 'Signing Statements' More Heft, Boston Globe, July 15, 2006, at A3. Available online (external link).

Christopher Lee, Alito Once Made Case for Presidential Power, Washington Post, January 2, 2006, at A11. Available online (external link).

Randy Picker, Presidential Signing Statements and the Tricameral Legislature, The Faculty Blog, University of Chicago, School of Law, January 14, 2006. Available online (external link).

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Reports And Papers

American Bar Association, Report of the Task Force on Presidential Signing Statements and the Separation of Powers Doctrine (2006). Available online (external link).

T.J. Halstead, Congressional Research Service, Presidential Signing Statements: Constitutional and Institutional Implications, CRS Report RL-33667 (2006). Available online (external link) (PDF).

David H. Remes, et al., Covington & Burling, Presidential Singing Statements: Will Congress Pick up the Gauntlet (2006). Available online (external link) (PDF).

Coalition to Defend Checks and Balances, The Constitution Project, Statement on Presidential Signing Statements: An Initiative of The Constitution Project (2006). Available online (external link) (PDF).

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Web Resources

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Last Updated: 08/02/2012