Presidential signing statements are official pronouncements issued by the President of the United States at or near the time a bill is signed into law. 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). This language is often referred to as the “Take Care Clause.” Congress passes laws and the President enforces them.
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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). The U.S. Supreme Court is the ultimate arbiter of whether a law is constitutional or not (Marbury v. Madison, 5 U.S. 137 (1803)).
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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 External, 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)).
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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 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, 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)).
The Law Library of Congress has compiled the following selective bibliography of resources relating to presidential signing statements. The bibliography includes Congressional Hearings, court cases where the signing statements were discussed, law journal articles, selective press releases, news articles and other secondary materials.
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