Reconsidering the Presidential Signing Statement

Posted September 10, 2007 at 4:42pm

The presidential signing statement recently has received considerable attention regarding both its use and alleged abuse. Media coverage of the signing statement tends to frame its increased use as a quasi-legal means to further consolidate presidential authority within a unitary executive. An alternative perspective of the signing statement considers it not as a menacing power grab, but rather as a rational response to Congress’ continued use of the legislative veto, which encroaches upon the ability of the president to serve as chief executive. Fundamentally, both the legislative veto and the signing statement are institutional tools aimed at exerting a greater control over the policymaking functions performed by the expansive federal bureaucracy.

Legislative vetoes generally are statutory provisions that condition certain policymaking functions delegated to administrative agencies as subject to future Congressional approval, rejection or review. Although the Supreme Court declared the one-chamber veto unconstitutional by arguing that these provisions violated the constitutionally prescribed process of bicameral passage and presidential presentment, Congress has continued the utilization of the legislative veto as an oversight device. In fact, according to an original data set compiled as part of my dissertation research, Congress has written more than 3,000 legislative veto provisions into legislation since the Immigration and Naturalization Service v. Chadha decision of 1983. From a Congressional perspective, these veto provisions are appealing. They allow Congress to secure the benefits of delegating policymaking powers to bureaucratic agencies and maintain a significant means of controlling the actions of bureaucratic officials.

Legislative vetoes most often are included in appropriations legislation. In addition to the timetable for withdrawal, the emergency appropriations bill vetoed by President Bush in May contained more than a dozen legislative veto provisions. A typical appropriations bill contains several dozen Congressional vetoes. While relatively few appropriations bills contain no such provisions, the omnibus appropriations bill passed by the 108th Congress was packed with more than 150. The continued employment of legislative vetoes by Congress to exert control over bureaucratic agencies has generated a persistent and intense presidential opposition. Accordingly, recent presidents have employed the signing statement with increasing frequency as a means to minimize the effects of legislative veto enactments on policymaking.

Presidential signing statements were infrequently issued during the 19th century but became increasingly used during the latter half of the 20th century. With respect to legislative vetoes, all presidents from Dwight Eisenhower onward have issued signing statements criticizing Congress for including such provisions in legislation. As the Chadha decision occurred during President Ronald Reagan’s first term, he was the first president to cite Supreme Court precedent as support for the presidential opposition to legislative vetoes. In recent decades, presidents have increased their use of signing statements to instruct executive officials to treat certain legislative veto provisions as advisory in nature rather than legally binding.

From 1993 to 2006, the previous and current administrations issued a total of 531 signing statements while signing 3,129 bills into law, according to The American Presidency Project at the University of California at Santa Barbara. This corresponds to affixing a signing statement to approximately one out of every six bills passed. Contrary to common perception, President Bill Clinton issued many more signing statements (383) compared with President Bush (148). In many of these statements, both presidents have raised a constitutional objection with respect to certain components of the legislation. Often these protests single out legislative veto provisions as unconstitutional encroachments on the executive powers of the president.

Based on a statistical analysis of presidential signing statement and legislative veto data, I have found significant relationships between the number of legislative veto provisions included in legislation and the probability of the issuance of a signing statement. In short, when signing a bill into law, presidents significantly are more likely to issue a signing statement when greater numbers of legislative veto provisions are present.

One reasonable way to interpret these findings is to consider the modern usage of the presidential signing statement not as a somewhat underhanded means to consolidate presidential power, as many have suggested, but rather as a judicious attempt to curb Congress’ continued use of the legislative veto as a means to exert greater control over policies made within the executive branch.

While much has been written about presidential signing statements over the past several years, it is a mistake to pass judgment on this phenomenon when considering it in isolation. Rather, one should conceptualize the use of the signing statement in association with the modern political environment with which it is employed. The increasing size of the federal bureaucracy has coincided with an increased role in the politics of making policy decisions. In turn, this has intensified the conflict between the president and Congress for bureaucratic control. As Congress has continued the practice of including legislative vetoes into legislation, presidents have rationally responded with an increased use of the signing statement. Absent substantial judicial intervention, neither practice is likely to end, especially given what is at stake.

Michael John Berry is a Ph.D. candidate in political science at the University of Colorado.