Statements of power: presidential use of statements of administration policy and signing statements in the legislative process.
In 1997, Republican congressional leadership thought they had President Bill Clinton trapped into accepting something he did not want in order to get something he did. The foreign relations authorization bill for fiscal year 1998 provided the vehicle. They included payment of back dues owed to the United Nations in the bill, but to get it, Clinton would also have to assent to another provision, one he vehemently opposed--restrictions on foreign aid to any family planning programs that performed or advocated abortion. "Can you imagine vetoing 100 percent of what you want because someone got 10 percent of what they want [that] you disagree with? That would be a foolish choice," stated House majority leader Dick Armey (Pomper 1998). Foolish or not, Clinton made the choice and vetoed the bill, using the tool the Constitution gave him to block bills he opposed.
He had another tool, though, at his disposal, one not included in the Constitution but one he used more than 40 times in the last four years of his presidency, and had he used it in this circumstance, things could have turned out differently. Instead of vetoing the bill, he could have signed it and attached a signing statement, announcing his intention to interpret the provision restricting funding to international family planning programs as merely advisory or as violating his constitutional powers to conduct foreign affairs, and therefore it would be disregarded or reinterpreted in a manner consistent with those powers. Valid reasoning or not, it could have given him exactly what he wanted--payment of the UN dues and no restrictions on aid to international family planning programs. But such a use could hardly escape notice. Clinton's signature on a bill allowing such restrictions would have outraged many of his supporters and violated a promise. In fact, the president would have faced strong incentives to draw attention to a signing statement announcing his intention to disregard the provision. But that would have brought this type of use of the signing statement to center stage and surely would have drawn congressional ire. Vetoing the bill, despite the fact that it would mean UN dues would remain unpaid, represented his best political option.
Two years later, Clinton and the Republican Congress again clashed over the foreign affairs reauthorization bill, but the game changed slightly. The United States was now faced with an embarrassing loss of its seat in the UN General Assembly if it failed to pay back dues. The bill eventually presented to Clinton was a consolidation of multiple appropriations and authorization bills that not only included the payment of the dues, but also substantially weakened the restrictions on funding to international family planning programs, allowing Clinton to waive them. Clinton signed the bill but attached a signing statement that included the following language:
Unfortunately, the bill also includes a provision on international family planning that I have strongly opposed throughout my Administration. This is a one-time provision that imposes additional restrictions on international family planning groups. However, I insisted that the Congress allow for a Presidential waiver provision, which I have exercised today. (Clinton 1999a)
After outlining positions on several other provisions in the signed bill, the section on the Foreign Operations portion also included the following:
This legislation includes a number of provisions in the various Acts incorporated in it regarding the conduct of foreign affairs that raise serious constitutional concerns. These provisions would direct or burden my negotiations with foreign governments and international organizations, as well as intrude on my ability to maintain the confidentiality of sensitive diplomatic negotiations. Similarly, some provisions would constrain my Commander in Chief authority and the exercise of my exclusive authority to receive ambassadors and to conduct diplomacy. Other provisions raise concerns under the Appointments and Recommendation Clauses.... Wherever possible, I will construe these provisions to be consistent with my constitutional prerogatives and responsibilities and where such a construction is not possible, I will treat them as not interfering with those prerogatives and responsibilities. (Clinton 1999a)
Statements such as these, once rare, have now become nearly standard presidential practice. Presidents, at times, use them to achieve outcomes that bargaining and vetoes fail to achieve (Kelley and Marshall 2008, 2009). For many years, this practice largely escaped notice despite the gradual increase in use. President George W. Bush, though, attracted heavy fire for his dramatic increase over all prior presidents in the use of signing statements to declare a presidential prerogative to disregard or reinterpret provisions of law he deemed unconstitutional infringements on executive power. This view of the signing statement did not originate with the Bush administration, however. We can, in fact, see the gradual emergence of a doctrine of signing statements over the past four administrations, culminating in the ease of use by the George W. Bush administration. Bush's escalation in use called attention to this presidential practice, which has been labeled by some as equivalent to royal prerogative (May 1998) and has generated concern over the separation and balance of powers.
In the following sections, I briefly outline the development of a presidential doctrine of signing statements and the concerns this has generated. I then introduce another often overlooked statement that expresses presidential views of laws before they are passed--Statements of Administration Policy--and examine how well they foreshadow what is to come in signing statements. This comparison of signing statements and Statements of Administration Policy from 1997 to 2004 allows us to determine whether Presidents Clinton and Bush used signing statements primarily as a last resort when prior attempts at bargaining with Congress failed, or whether they instead relied on signing statements to bypass the bargaining process altogether. In comparing these documents, I find that sometimes presidents give Congress advance notice of their concerns in an attempt at legislative bargaining, but Congress is also frequently blindsided by "disregard" signing statements against provisions that generated no prior formal comment from the president. In these instances, the president appears to eschew the opportunity to influence how Congress writes the bill and opts instead to unilaterally make the changes himself. I suggest, through case studies of several bills that generated both Statements of Administration Policy and signing statements, that both documents can be used by presidents to assert substantial power over the interpretation of laws and to announce their selective nonenforcement based on claims of unconstitutionality. As a result, both documents deserve the close scrutiny of both political scientists and policy makers.
The Evolution of Signing Statements and Presidential Power
Presidential power has expanded over time as presidents have asserted new prerogatives and built on the precedents of their predecessors. We have seen this in the areas of presidential commitment of troops, executive orders, and impoundments, to name a few. Presidents push, and when Congress fails to respond to the expansion of power, subsequent presidents take it as accepted precedent and build on it. Fisher (1995) traces the development of presidents' commonly used ability to commit troops to military actions without congressional declarations of war back to Harry S. Truman's decision to commit troops to Korea. While the precedent Truman established, according to Fisher, was a faulty one because Congress did not challenge Truman, subsequent presidents accepted it as valid and acted accordingly. It took 23 years and public discontent over U.S. involvement in Vietnam before Congress attempted to reassert some of its role in the process through the War Powers Resolution, but presidents continue to commit troops without consulting Congress. Sometimes, though, presidents attempt such a large expansion of power that it draws the immediate attention and ire of Congress. We can see this with Richard Nixon's use of impoundments. While they were originated by George Washington and used and expanded on by subsequent presidents, Nixon dramatically expanded the use of impoundments both quantitatively and qualitatively, using them to advance his policy goals for agencies and programs, sometimes at the expense of those of Congress. In this case, Congress responded quickly, passing the Budget and Impoundment Control Act of 1974, reinstating its say over appropriated funds while allowing the practice to continue. The use of signing statements follows a similar trajectory.
As Kelley (2003) has helped uncover, the use of signing statements to disregard provisions of bills signed into law for constitutional reasons dates back to the nineteenth century and President James Monroe. Such uses were typically few and far between until the modern presidency. Their use steadily escalated from President Jimmy Carter to President Ronald Reagan to President George H. W. Bush. President Clinton issued slightly fewer than his predecessor, and then came the exponential increase of President George W. Bush, who issued objections to more provisions than all prior presidents combined (ABA 2006). During this period, there was not just an increase in the use of signing statements, there also emerged a doctrine to support their use. (1) By the time George W. Bush assumed office, a theory of this power, developed by administrations of both parties, had emerged that could be used by presidents to justify, (2) if not demand, routine use.
Kelley credits the Reagan administration with putting "the signing statement into the category of useful presidential tool" (2003, 9). The groundwork for doing so, however, was laid near the end of the Carter administration. In a 1980 memo for the Office of the Legal Counsel, Attorney General Benjamin Civiletti argued that while presidents should generally enforce provisions of law passed by Congress, nonenforcement is justified when they are clearly unconstitutional and when they violate the powers of the president (Johnsen 2000). With a basic argument in place for signing bills into law while refusing to enforce certain provisions within them, the Reagan administration turned to getting the president's primary venue for making these nonenforcement announcements--signing statements--officially recognized. A 1986 memo by Samuel Alito, then a lawyer with the Department of Justice, argued that the administration should seek to have signing statements used in interpreting laws, and he developed a plan for doing so (Alito 1986). Attorney General Edwin Meese pursued this, arranging with West Publishing Company to have signing statements published along with legislative histories. (3) The Reagan administration also succeeded at gaining some court recognition of the place of signing statements in interpreting legislation by having signing statements cited in several cases (ABA 2006). While these citations did not explicitly endorse the practice, they were acknowledged as a source of determining executive intent. (4) By the end of Reagan's second term, signing statements had been elevated to a place of at least limited legitimacy in the eyes of the courts and had been used by Reagan some 71 times to refuse to enforce provisions on constitutional grounds (Kelley 2003).
A justification for disregarding provisions viewed as unconstitutional was advanced in subsequent administrations. As President George H. W. Bush took office, Deputy Attorney General William P. Barr wrote an opinion for the Office of Legal Counsel that identified 10 types of encroachments on executive power by Congress that should be counteracted through the use of signing statements (Kelley 2003). A 1992 memorandum by Acting Assistant Attorney General Timothy Flanigan developed a theory of constitutional justification for such a use. It discussed a scenario in which the "take care" clause and the duty to uphold the Constitution clearly and genuinely clash. It concluded that the supremacy clause, combined with the oath of office to uphold the Constitution, indicates that the president must obey the Constitution rather than an unconstitutional law. (5) A 1993 memo by Assistant Attorney General Walter Dellinger concluded that the use of signing statements to announce nonenforcement of provisions on constitutional grounds "can be a valid and reasonable exercise of Presidential authority" and that "although the recent practice of issuing signing statements to create 'legislative history' remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes" (Dellinger 1993). In a memo the following year, he argued that when a president believes a provision places an unconstitutional limit on his power and thinks the court would agree with his assessment but a resolution in the courts is unlikely, "he must shoulder the responsibility of protecting the constitutional role of the presidency" (Dellinger 1994). Together, these memos and opinions can be read by presidents as a mandate, at least in certain circumstances, to use signing statements to block provisions of law that seem to unconstitutionally intrude on their powers, a view adopted by the administration of President George W. Bush. (6)
But this is not the only way to view the matter. Critics see these signing statements as exhibiting a blatant disregard for the Constitution. Opponents of the practice focus on the "take care" clause and the tool the framers gave the president for fighting unconstitutional laws: the veto. In one view, signing statements act in function, if not in form, as a line-item veto that leaves Congress unable to respond (see, e.g., Cooper 2005; Garber and Wimmer 1987; May 1998). The president signs the bill as a whole, but strikes out certain provisions of it through announcements of nonenforcement or disregard in signing statements. The U.S. Supreme Court clearly ruled that the line-item veto was unconstitutional in Clinton v. City of New York. In this view, if the president thinks a law is unconstitutional, he should veto it. Opponents also identify these signing statements as acting as judicial review, a province that they argue belongs solely to the courts, (7)
reading Marbury v. Madison's famous statement as it is not only "emphatically the province and duty of the judicial department, to say what the law is," it is also the province of the judiciary alone to say what the law is. This would apparently be supported by Chief Justice John Marshall, who also wrote that "the constitution vests the whole judicial power of the United States" in the Supreme Court and in lower courts established by Congress (quoted in Ducat 1996). In this view, if a president chooses not to veto a law viewed as unconstitutional, he must enforce it until such time as the courts rule it unconstitutional. (8)
The signing statement controversy reached center stage in the spring of 2006, when newspaper reporter Charlie Savage of the Boston Globe wrote a series of articles detailing George W. Bush's repeated use of signing statements to "disobey more than 750 laws." (9) This culminated with Congress contemplating several bills to restrict the practice and a task force convened by the American Bar Association to investigate the practice and assess its compatibility with the Constitution and statutory law. While the task force report condemned the practice as "contrary to the rule of law and our constitutional system of power," it included among its recommendations that presidents provide advance notice of constitutional concerns while the bill is still under consideration in Congress (ABA 2006). Offering advance warning provides Congress the opportunity to consider fixing what presidents see as constitutional defects in the bill, whereas with blindsiding, presidents bypass the legislative process and apply their own "fix."
In the next section, I investigate whether and how often presidents give Congress advance warning of their concerns before being presented with the bill. I do this by examining another presidential document that, until fairly recently, generated little attention or study: Statements of Administration Policy.
Two Forms of Presidential Communication: Signing Statements and Statements of Administration Policy
Statements of Administration Policy (SAPs), produced by the U.S. Office of Management and Budget (OMB), outline the official administration position on legislation under consideration in Congress. Comments on the bill under consideration are solicited from relevant executive departments, and the OMB coordinates these (and presumably censors those inconsistent with the president's views) into a single document containing the administration's views on the bill. Not every bill garners an SAP. Of the more than 1,800 bills passed by Congress between 1997 and 2004, only about 44% triggered an SAP. They can appear at any point in the legislative process and frequently target the chamber floor.
Like signing statements, SAPs take multiple forms. Some provide glowing endorsements of the legislation under consideration--just like the rhetorical signing statements described by Kelley (2003)--some promise a veto, while others outline a series of objections that the president wants addressed before the bill is presented to him. These objections may or may not be accompanied by a threat of a veto. (10) Researchers studying SAPs have focused on those that convey veto threats (see, e.g., Carson and Marshall 2003; Kelley and Marshall 2009; Kernell and Kim 2006; Kernell and Rice 2005; Marshall 2003). This form of SAP is the most easily accessible, thanks to an OMB official who saved all of his copies of these from 1986 on, and to Samuel Kernell, who produced a compilation of these and made them available for other researchers to use (Kernell 2005).
Kelley and Marshall (2009) used these SAP veto threats to show how signing statements can add to gains produced through veto bargaining. In their statistical analysis, they found that these veto threats help predict the presence of signing statements. (11) They then "infer from this that the signing statement is part of a larger coordinated strategy to influence policy at the end of the veto bargaining process." They characterize signing statements as a last-mover advantage in a bargaining game that allows presidents to fix prior bargaining failures in a way that combines bargaining and unilateral action (Kelley and Marshall 2008). While a veto means a return to Congress, a signing statement does not. Thus, when presidents decide to issue signing statements that announce their intention to disregard provisions of the bill, they enjoy the last move in the legislative process. They can apply their own fix to the bill in order to accomplish what bargaining failed to do, and they can do so without the consent of Congress.
In the next section, I investigate how often presidents foreshadow their signing statements in SAPs and give Congress the chance to respond to their concerns, and how often they bypass bargaining, opting solely for unilateral action through this last-mover advantage. I start with 1997 because this is the first year for which all Statements of Administration Policy, not just those that conveyed veto threats, are available. SAPs were issued for 816 bills in that period, and about 30% contained explicit veto threats. I compare the SAPs to the collection of signing statements available on the website of the American Presidency Project from 1997 to 2004 (a total of 315).
Those signing statements that explicitly raise constitutional concerns about specific provisions and announce the intention to regard these as advisory or precatory, substantially reinterpret them to make them constitutional, or announce the intent to disregard them were coded as "disregard" signing statements. (12) Complaints about provisions the administration dislikes, those that announce the intent to work with Congress to resolve concerns in the future, or interpretations of provisions for agencies that do not include constitutional concerns (and do not imply they will completely disregard the provision passed by Congress or treat it as advisory) were not included. (13) Thus, I am looking at the most offensive or egregious use in the eyes of critics such as Congress and the ABA task force. I identified 92 signing statements clearly meeting this criteria: 41 from the Clinton administration and 51 from the Bush administration. (14) These make up roughly 5 % of the total bills signed into law during this period. In the next section, I compare these to Statements of Administration Policy to investigate whether presidents give Congress fair warning of their concerns and attempt to resolve them prior to passage.
Communication of Concerns?
The American Bar Association task force report (2006) suggests that if presidents have constitutional concerns, they should seek to resolve them while the bill is under consideration in Congress. SAPs provide official notice of administration concerns about bills, and a comparison of signing statements to SAPs allows a determination of how often this occurs. Is the president notifying Congress of concerns and objections and giving lawmakers a chance to consider these and make changes as they deem best, or is the president blindsiding Congress with objections only raised and fixed with the president's signature?
The bills signed into law that generated signing statements make up 17% of the total laws signed. As summarized in Table 1, at first glance, it appears that Congress received warning just slightly more often than it was blindsided by signing statements--only 51.1% of disregard signing statements were preceded by a Statement of Administration Policy. When looking at all signing statements, though, only 42.2% were preceded by a SAP. Thus, although presidents seem to blindside Congress with their Constitutional concerns roughly half the time, they are a little more likely to use SAPs as precursors for bills with "disregard" signing statements than for signing statements in general. There were small differences by president. Although Bush issued more disregard statements, in the period examined, Clinton and Bush were almost equally likely to issue disregard signing statements without preceding them with any formal statement on the bill in the form of an SAP. This was true of 51.2% of Clinton's disregard signing statements and 47.1% of Bush's. At best, these presidents gave Congress the opportunity to respond to their objections during the lawmaking process only half the time.
The mere presence of an SAP before a disregard signing statement does not guarantee that the SAP gives notice of the president's concerns. Examining the content of SAPs reveals a different story (see Table 2). I first examine how many of these SAPs actually threatened to veto the legislation. Just looking at bills that have both a disregard signing statement and an SAP, only 34% (16) included a threat to veto the bill over at least one provision in the bill. One additional SAP contained a veto threat over a potential amendment. An additional 48.9% (23), while stopping short of a veto threat, listed items of concern and provisions opposed. Of the SAPs for the remaining seven bills, four expressed pure support for the bill and three expressed support but either mentioned specific additions that would improve the bill in their view or included vague references to additional unnamed concerns. Overall, while a minority of these "disregard" signing statements were accompanied by threats to veto the bill, in 85% of the bills with "disregard" signing statements that were prefaced by an SAP, the SAP listed administration objections to the bill. A large majority of the time, when presidents precede their signing statements with SAPs, they provide Congress with at least some advance notice of their concerns and make some attempt at bargaining to resolve them. However, as Table 1 shows, disregard signing statements are only preceded by SAPs about half the time.
Differences in patterns of use exist by president. Bush, who faced a unified government at the time, was more likely than Clinton, who faced a divided government in the years examined, to support bills in general, but he also appears somewhat more likely than Clinton to blindside Congress with a "disregard" signing statement. In addition, he was less likely than Clinton to preface his "disregard" statements with veto threats. (15) Roughly one-quarter of the SAPs for Bush's "disregard" signing statements contained veto threats, compared to 50% of Clinton's. An additional 55.6% of Bush's and 40% of Clinton's expressed opposition to certain provisions but did not threaten a veto. Finally, those that expressed only support for the bill's content but discussed additions that could improve the bill or included only a vague mention of unnamed concerns were all from the Bush administration, and of those that expressed pure support, two were from the Bush administration and two from Clinton's. Bush included specific objections 77.8% of the time compared to Clinton's 90%. The remaining 10% to 22% of the SAPs contained no clues whatsoever to Congress of what might be later officially disregarded through signing statements.
Before moving on to whether the objections in the SAPs are the same as those later raised in the signing statements, it proves instructive to examine several of these cases of clear blindsiding in greater depth. What sorts of issues fell prey to blindsiding, what was the magnitude of change in interpretation and content, and did the president have adequate opportunity to weigh in earlier in the legislative process? As Cooper points out in his examination of signing statements, a full understanding "requires a rather detailed consideration of the actual language used in the statements" (2005, 521), as well as the legislation itself. I discuss two cases in which presidents provided not even a hint to Congress that specific concerns about the bill's content existed when they issued their SAP: the International Dolphin Conservation Program Act of 1997 and a bill amending an agreement between the United States and Mexico in 2004.
International Dolphin Conservation Program Act of 1997
When the International Dolphin Conservation Program Act of 1997 reached the House floor on May 20, the Clinton OMB issued one of its shortest SAPs on record:
The Administration strongly supports House passage of H.R. 408, as reported by the House Resources and Ways and Means Committees. The bill would implement an international agreement to protect dolphins and the entire ecosystem of the eastern tropical Pacific Ocean. (OMB 1997)
The House floor, though, rose as a Committee of the Whole to pass an amendment in the nature of a substitute the day after the SAP was issued. It then went to the Senate, which substituted the text of S. 39 amended on July 30. The House then agreed to the Senate amendment, and the bill was presented to the president the following day. Neither version triggered an SAP from the OMB.
The seven-paragraph signing statement is full of praise for the bill and those who worked to pass it, but buried near the middle is a paragraph announcing the following:
Unfortunately, H.R. 408 also contains provisions that could be construed to direct how the Nation's foreign affairs should be conducted. The Constitution vests the President with special authority to conduct the Nation's foreign affairs, and this authority necessarily entails the exercise of discretion. Thus, section 4(e), that portion of section 6(c) that amends section 302 of the Marine Mammal Protection Act, and section 7(c) will be construed to be advisory within the executive branch. (Clinton 1997)
Three provisions of the newly signed law were to be treated as advisory on constitutional grounds under the president's authority to conduct foreign affairs. Section 7(c) of the bill states that at least one of the secretary's appointments must be "either the Administrator, or an appropriate officer, of the National Marine Fisheries Service" and addresses by catch reductions (H.R. 408, 1997). This provision was present in the bill reported to the House floor May 20, the version the administration strongly supported. Sections 4(e) and 6(c), which instruct the secretary regarding the conduct of specific international negotiations and the pursuit of a specific international agreement, were added much later in the legislative process and did not appear until the version that passed the Senate floor on July 30. Because the bill was approved and presented to the president the following day, there was little opportunity for the president to weigh in on these two provisions. On all three provisions, Congress appears to have been blindsided by the president, even though he had ample time to give Congress his objections to at least one of these three provisions and make an attempt to bargain.
Bill Amending an Agreement between the United States and Mexico
The SAP for H.R. 254 in the 108th Congress, issued February 26, 2003, consists of three paragraphs of praise for the bill and concludes by stating that "the administration urges its passage" (OMB 2003). Bush's signing statement, though, identifies three sections that would be ignored on the basis of unconstitutional intrusions into executive authority (Bush 2004a). Two of these, which require the secretary to report to Congress on discussions between the United States and Mexico, were present in the House version, on which the SAP was based. The other, which instructs representatives in the United States to take a particular position in negotiations on grant proposals, was added in the Senate version. This version passed the Senate on March 12, 2003, was agreed to by the House on March 24, and was presented to the president on March 25. Once again, Congress appears to have been blindsided by the president, even though two of the three provisions already existed when the SAP was issued, and there was at least a two-week span of time when objections could have been raised against the third.
The two cases have more than blindsiding in common. They also share the nature of objections in the signing statements. Both bills involve foreign affairs and international agreements. They enacted broad goals supported by the president but also included perceived micromanagement that interfered with the president's authority in this arena, and were viewed by the president as unconstitutional intrusions into his power. Perhaps blindsiding is more common in this arena, where presidents are given broader authority. While in some cases, lack of time to respond may be an issue partially explaining blindsiding, it appears that presidents may also find it easier to fix these problems on signing rather than raise issues during the legislative process that may stall enactment of policies they consider important.
Communicating Objections during the Legislative Process
The lack of a veto threat in an SAP does not necessarily equate with blindsiding. In all of the other bills with "disregard" statements that were preceded by an SAP, the SAP at least alluded to the existence of concerns. While it appears that both presidents often notified Congress of objections when SAPs preceded signing statements, this did not guarantee that the objections listed in the SAP matched those of the signing statements. Presidents still may include in their signing statements intentions to disregard provisions that were not flagged as constitutionally objectionable in their SAPs. In examining these documents in depth, I discovered sometimes presidents give advance warning in their SAPs and sometimes they do not. Or, in the language of Kelley and Marshall (2008), sometimes presidents use bargaining and unilateral action together, while at other times, they use unilateral action alone. Several case studies prove instructive.
Some Warning but No Threat: District of Columbia Appropriations Act of 2005
The SAP issued for H.R. 4850, the District of Columbia Appropriations Act of 2005, states that the administration supports passage of the version reported to the House floor. It goes on to discuss a number of specific provisions, some of which the administration "applauds" and others it "strongly opposes." Near the end, the SAP contains a section labeled constitutional concerns. It lists two. One of these delegates some decisions about the appropriation of funds to the District of Columbia without subjecting them to a dollar cap. The second constitutional objection in the SAP reads as follows:
The Administration objects to section 129(5) that would purport to require Committee approval before Executive Branch execution. This provision should be changed to require only notification of Congress, since any other interpretation would contradict the Supreme Court ruling in INS v. Chadha. (OMB 2004)
The signing statement also identifies two provisions. One matches the SAP, and one does not.
Section 309 of the Act purports to require the use of particular revenue estimates in the budget request for fiscal year 2006. The executive branch shall construe section 309 in a manner consistent with the President's constitutional authority to recommend for congressional consideration such measures, including requests for appropriations, as he judges necessary and expedient.
Section 331(5) of the Act purports to require congressional committee approval prior to obligation or expenditure of appropriated funds. The executive branch shall construe this provision to require only prior notification to the congressional committees, as any other construction would be contrary to the constitutional principles set forth by the Supreme Court of the United States in 1983 in INS v. Chadha. (Bush 2004b)
The first provision was not targeted in the SAP, although it exists as follows in the House-passed version of the bill:
SEC. 109. No later than 30 days after the end of the first quarter of fiscal year 2005, the Mayor of the District of Columbia shall submit to the Council of the District of Columbia and the Committees on Appropriations of the House of Representatives and Senate the new fiscal year 2005 revenue estimates as of the end of such quarter. These estimates shall be used in the budget request for fiscal year 2006. The officially revised estimates at midyear shall be used for the midyear report. (H.R. 4850, 2004)
The only thing that changed in this section from this version to the version presented to the president was the number of the section. Thus, on this provision, the president appears to have blindsided Congress with his announcement that he would disregard their restrictions.
The second provision targeted in the signing statement, Section 331(5), had been targeted as objectionable in the SAP. It was numbered section 129(5) in the House version. While President Bush made an attempt to bargain, Congress ignored this objection, and it survived unchanged in the version presented to the president. The final version presented to the president responded to the other constitutional concerns raised in the SAP, increasing the strings placed on appropriations decisions by the District of Columbia and adding dollar caps to most discretionary spending. Congress responded to one concern in the SAP but ignored the other. Although the Supreme Court ruled legislative vetoes unconstitutional, Congress continues to include them in its laws. In these cases, the president has reason to believe the courts would agree with his interpretation. This use matches the criteria of the Dellinger memo (1994) and part of the context-dependent approach advocated by Johnsen (2000). It also meets the criteria of advance notice. The president notified Congress of his concerns during the legislative process, it ignored him, and he targeted it in his signing statement. But President Bush also blindsided Congress with a third provision, not identified in the SAP, even though it was part of the bill that had generated the SAP.
A Perfect Match but No Threat: The Veterans Entrepreneurship and Small Business Development Act of 1999
The SAP for H.R. 1568, the Veterans Entrepreneurship and Small Business Development Act of 1999, announces that while the administration supports the goal of the bill, it "contains provisions which give rise to constitutional and other concerns," and lists several provisions that it will work with the Senate to resolve. One of these involves the composition of a board: "the manner in which the Board of Directors of the National Business Development Corporation would be appointed raises constitutional concerns" (OMB 1999a). The House version of the bill specifies that, while all are appointed by the president, eight of the nine appointments to this board must come from lists of individuals generated by specific congressional committees. Congress responded to the president's concern. The final version stated instead,
The President shall, after considering recommendations which shall be proposed by the Chairmen and Ranking Members of the Committees on Small Business and the Committees on Veterans Affairs of the House of Representatives and the Senate, appoint United States citizens to be voting members of the Board, not more than five of whom shall be members of the same political party. (H.R. 1568 1999)
While less restrictive, this still triggered constitutional concerns, and the signing statement pronounced the following: "This provision unjustifiably intrudes upon the President's constitutional authority and discretion to appoint executive officials, and, therefore, I will treat this provision as precatory" (Clinton 1999b). In this case, bargaining with Congress during the legislative process produced partial success. It was not enough, however, to satisfy the president, who wanted no restrictions on his nominations. He thus used the signing statement to announce that he would ignore the recommendations of Congress if he chose when making his nominations. This case fits well with Kelley and Marshall's (2009) assessment of how signing statements may augment gains from veto bargaining, only in this case, a threat to veto was never attached to it. This case suggests the importance of examining SAPs of multiple types, not just those that contain veto threats, in the legislative bargaining process, as well as the power of signing statements to enforce presidential views of constitutional powers.
So far, the cases examined have illustrated that sometimes presidents give Congress warning of their constitutional concerns in their SAPs, while at other times, they blindside Congress with their signing statements. In the next section, I consider one additional type of case: constitutional objections in SAPs not included in signing statements.
Do Statements of Administration Policy Do What Their Name Implies?
In this section, I consider an additional use of Statements of Administration Policy. Kelley and Marshall (2006a) raise the possibility that if Congress restricted the use of signing statements, presidents might continue to do the same thing and call it something else. Could it be that is what presidents have already been doing? Although SAPs stake out positions on pending legislation, they are, after all, labeled Statements of Administration Policy. Are there cases in which the president makes constitutional pronouncements about provisions in SAPs rather than signing statements? If so, is there evidence that presidents stick to the initial pronouncements in these SAPs once they sign the bill into law without reiterating them in a signing statement? In the remainder of this section, I discuss two cases that suggest this may be true: H.R. 4811, the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 2001, and H.R. 2590, the Treasury and General Government Appropriations Act of 2002.
Foreign Operations, Export Financing, and Related Programs Appropriations Act of 2001
H.R. 4811 triggered a veto threat in a lengthy SAP, which identifies numerous objectionable provisions and included a section on constitutional objections. Five provisions are identified as constitutionally objectionable. Three, discussed later, show up in the signing statement, but two, quoted here, do not:
Section 565 (To Prohibit Foreign Assistance to the Government of the Russian Federation Should It Enact Laws Which Would Discriminate Against Minority Religious Faiths in the Russian Federation) and the section entitled "Contribution to the International Development Association," could be read to infringe upon the President's authority over diplomatic negotiations. These provisions, if enacted, would also be construed as precatory. (OMB 2000)
When the president was presented with the bill, all five of these sections remained. The signing statement praises a number of aspects of the bill but includes the following statement on constitutional concerns:
Certain provisions of the Act could interfere with my sole constitutional authority in the area of foreign affairs by directing or burdening my negotiations with foreign governments and international organizations. Several sections, including 514 (Surplus Commodities), 564 (Sanctuary to Indicted War Criminals), and 577 (Kyoto Protocol), purport to specifically direct the Executive on how to proceed in negotiations or discussions with international organizations and foreign governments. I will not interpret these provisions to limit my ability to negotiate and enter into agreements with foreign nations. In order to avoid intrusion into my negotiating authority and my ability to maintain the confidentiality of sensitive diplomatic negotiations, I will not interpret section 566(b) (Greenhouse Gas Emissions) to require me to disclose either the contents of diplomatic communications or specific plans for particular negotiations in the future. (Clinton 2000)
Sections 514, 564, 577, and 566(b) had all been targeted as containing constitutional concerns in the SAP.
Sandwiching the section from the SAP quoted above, was the following:
Sections 514 (Surplus Commodities), and 564 (Restrictions on Assistance to Countries Providing Sanctuary to Indicted War Criminals) purport to direct the vote of the United States representatives to international financial bodies. As provisions that purport specifically to direct the President on how to proceed in negotiations with international organization could be construed to interfere with the President's exclusive power to control diplomatic negotiations, these provisions would be construed as precatory should they be enacted....
Finally, in order to avoid intrusion into the President's negotiation power and his ability to maintain the confidentiality of diplomatic negotiations, section 566 (Greenhouse Gas Emissions) would not be interpreted to require the President to disclose either the contents of diplomatic communications or specific plans for particular negotiations in the future. (OMB 2000)
Notice how closely they match the language contained in the signing statement. Other than moving from third person to first person and removing the qualifier "should they be enacted," there is little change from the SAP to the signing statement. So what about the two provisions in the SAP that also remained in the bill that President Clinton failed to mention in his signing statement? The signing statement targets "several sections including" (italics added) the ones directly mentioned as ones that would interfere with the president's ability to conduct negotiations. Are the "certain provisions" not included in his list the two others from the SAP? They certainly, according to the SAP, fit the description and suggest that such language in an SAP merits serious attention as it may be enforced upon enactment of the law.
Treasury and General Government Appropriations Act of 2002
H.R. 2590 also generated a fairly long SAP. This one failed to trigger a veto threat. It states that the administration supports passage of the bill, but goes on to discuss a number of objectionable provisions. Three specific provisions and one additional class of provisions are flagged in the SAP for constitutional concerns. Two of the specific provisions, both involving restrictions on OMB activities, were removed from the bill before it was presented to the president, but not every concern was addressed. The following provision remained in the final version:
Section 619 of the bill raises substantial separation of powers concerns because it could be read to limit the ability of the President and his appointed heads of departments to supervise and control the operations and communications of the Executive Branch, including the control of privileged and national security information. (OMB 2001)
It changes numbers to 620, but is otherwise identical in language to the House-passed version, which blocks use of funds appropriated in the act for the payment of salary to any employee of the federal government who prohibits, prevents, or attempts to prevent another federal employee from communicating to Congress about their work or their department. The SAP also mentions a class of provisions with constitutional problems.
The Administration objects to a number of provisions in the bill that would require Committee approval before Executive Branch execution. The Administration will interpret these provisions to require only notification of Congress, since any other interpretation would contradict the Supreme Court ruling in INS v. Chadha. (OMB 2001)
Numerous examples of provisions that prohibit actual spending without prior Appropriations Committee approval remained in the final version of the bill presented to the president. President Bush issued a signing statement for this bill, along with his signature, but it remained silent on both issues. He applauded the bipartisan effort that produced the bill, commended a number of funding levels as consistent with his priorities, and complained that they failed to enact his proposal to consolidate 18 separate appropriations items into a single one for the Executive Office of the President (Bush 2001). He made no mention of the constitutional concerns raised earlier. Given the administration's readiness to use signing statements to deal with constitutional concerns, what explains their absence here? Was it an oversight, did the administration change its position on the constitutionality of these provisions, or did it consider the SAP content a sufficient enough statement of policy that it did not need to be restated?
These cases suggest that, at times, SAPs state the policies of the administration and may function in the same way as "disregard" signing statements. Cooper (2005) characterizes presidential power expressed in signing statements as "hiding in plain view." Presidents may use SAPs to do the same. They sometimes raise objections to perceived interference with presidential power and announce that these sections, if retained in the final bill, will be treated as advisory or altogether ignored. The question that remains for future research is how often this occurs in SAPs rather than signing statements, and whether the executive branch in fact abides by the language within them. (16)
Assessing Statements of Power
In the opening of the paper, I discussed President Clinton and the Republican Congress's battle over provisions in foreign relations authorization bills in 1997 and 1999. That narrative was missing what I have now shown may be a key piece of the story: the SAP for the bill. Recall that the signing statement for the fiscal year 2000 bill passed into law targeted "a number of provisions" for constitutional concerns and announced that they would be interpreted so as to not interfere with the president's constitutional powers. Does the SAP identify these provisions alluded to in the signing statement? The signing statement says yes:
My Administration's objections to most of these and other provisions have been made clear in previous statements of Administration policy and other communications to the Congress. (Clinton 1999).
The signing statement suggests that many, but not all, of the objections contained in it had been raised with Congress during the legislative process. Not only does this signing statement point back explicitly to the SAP, it also suggests that there is other objectionable content, not outlined in the signing statement, that the Clinton administration will construe differently than written.
The SAP for a precursor to the bill (before it was bundled with the other bills) dated July 29, 1999, is more than six single-spaced pages long. While many of the expressed concerns have to do with funding levels, it also mentions, among its objections, the family planning provisions. The only other objection to a provision that explicitly cites constitutional grounds is described as follows:
Section 514(a) (Surplus Commodities) and section 566(b) (Sanctuary to Indicted War Criminals--Multilateral Assistance) purport to direct the Executive to take particular positions in international organizations. When construed as mandates, these provisions would encroach on the President's sole constitutional authority to control negotiations. If unchanged, this language would be construed as precatory. (OMB 1999b)
This leaves some of the specific provisions that President Clinton would construe as consistent with his "constitutional prerogatives and responsibilities" a puzzle. The signing statement vaguely mentions a broad range of constitutional objections and problems instead of providing a definitive list, and these objections and problems seem far broader than those explicitly mentioned in the SAP. Discovering the intent of the executive branch to ignore the implementation of specific provisions or to alter their interpretation may require close attention to formal communication about the bill issued on the president's behalf during the legislative process.
In this paper, I have examined whether presidents give Congress warning of their concerns and the chance to adequately respond to them. I found that in a slight majority of the cases of "disregard" signing statements, an SAP was never issued, meaning that presidents bypassed this opportunity to formally communicate their concerns to Congress during the lawmaking process. In these cases, Congress was deprived of the opportunity to carefully consider the president's concerns and respond to them. Looking more specifically at the content of the SAPs issued, I found that a large majority (85%) of the SAPs for bills with "disregard" signing statements contained specific objections, with Clinton's more likely to do so than Bush's. Through the case studies presented, we see that both presidents sometimes provide Congress advance notice of their constitutional concerns, while at other times, they blindside Congress with concerns raised for the first time over provisions that existed when the SAP was issued. When presidents blindside Congress, they bypass even the possibility of bargaining. Rather than trying to get Congress to resolve their concerns, they wait until Congress presents them with the bill and apply their own fix to it. While presidents can use bargaining and unilateral action together, as Kelley and Marshall (2008) suggest, on many occasions, they appear to choose unilateral action alone. Whether this represents a power-hungry president's favorite tool for bypassing the intent of Congress and the constitutionally outlined lawmaking process or a frustrated president's only meaningful resort to an intransigent Congress bent on infringing on the president's constitutional powers, presidents have now created a powerful role for themselves in the legislative process.
Finally, I discussed several cases suggesting that, at times, SAPs, rather than signing statements, may contain the final word on interpretations of provisions. Thus, presidents may already be doing what Kelley and Marshall (2006a) suggest if Congress were to successfully restrict signing statements: doing the same thing in a document called something else. This suggests that presidents may be asserting even more power to disregard or reinterpret on constitutional grounds than previously thought through the long-overlooked documents entitled Statements of Administration Policy. Clearly, this is a topic deserving of further examination.
The statements of power, both signing statements and Statements of Administration Policy, discussed in this paper can be particularly potent. Presidents may use these formal communications to assert policies different from those contained in the bills they sign into law. From a president's perspective, these documents offer great promise in asserting power. Presidents may eschew a veto of an entire bill with a few objectionable provisions for the more precisely targeted signing statement. As critics have charged, presidents can use signing statements to pick and choose which provisions of the laws they sign they intend to disregard, as long as they can link them to constitutional concerns. Sometimes they do not even inform Congress which of the bill's specific provisions will be reinterpreted--the signing statement only announces that it will occur. At times, Congress passes laws that contain clearly unconstitutional provisions, such as one-chamber or committee-only legislative vetoes ruled unconstitutional by the Supreme Court. At other times, the constitutional concerns raised by presidents may be a stretch at best. As the opening vignette suggests, presidents could use these to sign what they cannot afford politically to veto, while essentially striking out the objectionable provisions, and only reserve vetoes for what they cannot afford politically to sign. George H. W. Bush may have done this with his veto of the first civil rights bill passed by Congress and then his signing statement attached to the 1991 Civil Rights Act (Kelley 2003).
The signing statement may often represent a more powerful weapon than the veto. When the president uses one of these statements to make a constitutional pronouncement to disregard provisions, he leaves Congress struggling to respond. Any laws restricting signing statements could, after all, be met with a signing statement, rather than a veto. As many have argued, this raises serious concerns about the balance of power. Further, if Statements of Administration Policy are functioning at times the same way as signing statements do, as the cases of H.R. 4811 and H.R. 2590 suggest, successfully restricting the content of signing statements may not stop the presidential practice of disregarding and reinterpreting provisions in ways that protect and promote their own power. Presidents, through these statements of power, may have gained an upper hand, (17) provided bureaucrats actually pay attention to them. Still, whether listened to or not, these documents clearly contain substantial assertions of presidential power and merit careful scrutiny.
Statements of Administration Policy that raise constitutional concerns, particularly those involving perceived interference with presidential powers, may serve as veiled threats of signing statements to come or even stand-alone announcements of how the law will (or will not) be executed if Congress presents the bill to the president unchanged. As these statements become an even more accepted and routine part of the presidential toolkit, the incentives for both the president and Congress change. One can easily imagine presidents issuing explicit threats of signing statements alongside more traditional veto threats in their efforts to shape the legislation presented to them. A largely agreeable bill with only a few objectionable provisions fixable by the president might garner a signing statement threat while a primarily objectionable bill would still trigger a veto threat. In this scenario, presidents would sign the slightly flawed legislation they could fashion more to their liking through signing statements, reserving vetoes for bills so far from their preferences that they have no hope of fixing them. Congress would then face new incentives in how it crafts and bundles provisions in bills. The strategy of sneaking objectionable provisions into bills the president otherwise wants would not make it past the president so easily. To the extent presidents can change a bill's content through signing statements, a president's loss in bargaining with Congress over its content becomes irrelevant. They could still change failure to victory on their own in spite of Congress' recalcitrance. This makes the study of what presidents can and do accomplish through SAPs and signing statements all the more consequential to our understanding of presidential power within the legislative process.
AUTHOR'S NOTE: I thank Kalani Aydt and Emily Siemer for their research assistance.
Alito, Samuel. 1986. "Using Presidential Signing Statements to Make Fuller Use of the President's Constitutionally Assigned Role in the Process of Enacting Law." Memorandum of the Office of Legal Counsel. February 5.
American Bar Association (ABA). 2006. "Report of the American Bar Association Task Force on Presidential Signing Statements and the Separation of Powers Doctrine." http://www.abanet.org/op/signingstatements/ aba_final_signing_statements-recommendation-report-7-24-06.pdf (accessed July 27, 2010).
Bush, George W. 2001. "Statement on Signing the Treasury and General Government Appropriations Act, 2002." November 12.
--. 2004a. "Statement on Signing Legislation on Amendments to the Mexico-United States Agreement on the Border Environment Cooperation Commission and the North American Development Bank." April 5.
--. 2004b. "Statement on Signing the District of Columbia Appropriations Act, 2005." October 18.
Carson, Jamie, and Bryan Marshall. 2003. "Power with Power: A Strategic Choice Analysis of Presidential Vetoes and Congressional Overrides." Presented at the Annual Meeting of the American Political Science Association, Philadelphia, PA.
Clinton, William J. 1997. "Statement on Signing the International Dolphin Conservation Program Act." August 15.
--. 1999a. "Statement on Signing Consolidated Appropriations Legislation for Fiscal Year 2000." November 29.
--. 1999b. "Statement on Signing the Veterans Entrepreneurship and Small Business Development Act of 1999." August 17.
--. 2000. "Statement on Signing the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2001." November 6.
Cooper, Phillip J. 2005. "George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements." Presidential Studies Quarterly 35 (September): 515-32.
Corwin, Edward S. 1957. The President: Office and Powers, 1787-1957; History and Analysis of Practice and Opinion. 4th ed. New York: New York University Press.
Dellinger, Walter. 1993. "The Legal Significance of the Signing Statement." Opinion of the Office of Legal Counsel. November 3.
--. 1994. "Presidential Authority to Decline to Execute Unconstitutional Statutes." Opinion of the Office of Legal Counsel. November 2.
Ducat, Craig R. 1996. Constitutional Interpretation. 6th ed. Minneapolis/St. Paul, MN: West Publishing Company.
Fisher, Louis. 1995. "The Korean War: On What Legal Basis Did Truman Act?" American Journal of International Law 89 (January): 21-39.
Garber, Marc N., and Kurt A. Wimmer. 1987. "Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power." Harvard Journal on Legislation 24 (Summer): 363-95.
Johnsen, Dawn E. 2000. "Presidential Non-Enforcement of Constitutionally Objectionable Statutes." Law and Contemporary Problems 63 (Winter-Spring): 7-60.
Kelley, Christopher. 2003. "A Comparative Look at the Constitutional Signing Statement: The Case of Bush and Clinton." Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, April 3-6.
Kelley, Christopher, and Bryan W. Marshall. 2006a. "Assessing Presidential Power: Veto Politics and Presidential Signing Statements as Coordinated Strategies." Presented at the Annual Meeting of the American Political Science Association, Philadelphia, PA, August 31-September 3.
--. 2006b. "The Last Mover Advantage: Presidential Power and the Role of Signing Statements." Presented at the Annual Meeting of the Midwest Political Science Association, Chicago, April 20-23.
--. 2008. "The Last Word: Presidential Power and the Role of Signing Statements." Presidential Studies Quarterly 38 (June): 248-67.
--. 2009. "Assessing Presidential Power: Signing Statements and Veto Threats as Coordinated Strategies." American Politics Research 37 (May): 508-33.
Kepplinger, Gary L. 2008. "Presidential Signing Statements: Agency Implementation of Selected Provisions of Law." Testimony before the U.S. House Committee on Armed Services, Subcommittee on Oversight and Investigations. March 11.
Kernell, Samuel, ed. 2005. Statements of Administration Policy, 99th-108th Congresses. Washington, DC: CQ Press.
Kernell, Samuel, and Henry A. Kim. 2006. "Presidential Veto Threat as a Negotiating Instrument with the Bicameral Congress." Presented at the Annual Meeting of the American Political Science Association, Philadelphia, PA.
Kernell, Samuel, and Laurie L. Rice. 2005. "Do Veto Threats Move Congress? Congressional Responses to Threats of Legislation in Conference." Presented at the Annual Meeting of the Southern Political Science Association, New Orleans, LA.
Marshall, Bryan W. 2003. "Staring Down the Barrel of the Veto Pen: Veto Threats and Presidential Influence in Congress." Presented at the Annual Meeting of the Midwest Political Science Association, Chicago.
May, Christopher N. 1998. Presidential Defiance of Unconstitutional Laws: Reviving the Royal Prerogative. Westport, CT: Greenwood Press.
Pomper, Miles A. 1998. "Clinton Uncaps Veto Pen as State Department Bill Clears. CQ Weekly, May 2, 1167.
Rudalevige, Andrew. 2006. "The Plot That Thickened: Inheriting the Administrative Presidency." Presented at the Annual Meeting of the American Political Science Association, Philadelphia, PA.
Savage, Charlie. 2006. "Bush Challenges Hundreds of Laws." Boston Globe, April 30. U.S. Office of Management and Budget (OMB). 1997. "Statement of Administration Policy: H.R.
408--International Dolphin Conservation Program Act." May 20.
--. 1999a. "Statement of Administration Policy: H.R. 1568 Veterans Entrepreneurship and Small Business Development Act of 1999." June 29.
--. 1999b. "Statement of Administration Policy: H.R. 2606--Foreign Operations, Export Financing, and Related Programs Appropriation Bill, FY 2000." July 29.
--. 2000. "Statement of Administration Policy: H.R. 4811--Foreign Operations, Export Financing, and Related Programs Appropriations Bill, FY 2001." July 12.
--. 2001. "Statement of Administration Policy: H.R. 2590--Treasury, Postal Service, and General Government Appropriations Bill, FY 2002." July 24.
--. 2003. "Statement of Administration Policy: H.R. 254--North American Development Bank and Border Environment Cooperation Commission Authorization." February 26.
--. 2004. "Statement of Administration Policy: H.R. 4850--District of Columbia Appropriations Bill, FY 2005." July 20.
All signing statements come from:
Woolley, John and Gerhard Peters, The American Presidency Project [online]. Santa Barbara, CA: University of California [hosted], Gerhard Peters [database]. http://www. presidency.ucsb.edu.
Statements of Administration Policy come from:
Office of Management and Budget. http://www.whitehouse.gov/omb/.
All information from bills and public laws comes from:
LAURIE L. RICE
Southern Illinois University Edwardsville
(1.) Rudalevige (2006) traces the development of a theory of the unitary executive during this period and argues that it would more accurately be labeled the development of a doctrine.
(2.) Johnsen looks more to precedent than to legal opinions to conclude that "executive branch precedent suggests the beginning of a theoretical framework for a context-dependent approach and the appropriate factors to guide presidential non-enforcement decisions" (2000, 11).
(3.) This move triggered concern and debate among legal scholars and generated a number of articles in law reviews questioning the practice as a violation of the separation of powers. This reaction led Assistant Attorney General Dellinger of the Clinton Office of Legal Counsel to conclude that signing statements that create legislative history and not signing statements that disregard provisions for constitutional reasons were the most controversial use of signing statements (Dellinger 1993).
(4.) The majority opinion in Bowsher v. Synar (1986), penned by Chief Justice Warren Burger, includes the following as a footnote: "In his signing statement, the President expressed his view that the Act was constitutionally defective because of the Comptroller General's ability to exercise supervisory authority over the president."
(5.) These ideas can be traced to ones expressed much earlier by a few of the framers, as well as Andrew Johnson's impeachment defense as outlined by Johnsen (2000).
(6.) This view recently received some support from at least one legal scholar. Johnsen (2000) makes a case for context-dependent nonenforcement.
(7.) The Ninth Circuit expressed both of these views in a 1988 court case (Johnsen 2000).
(8.) See, e.g., Corwin (1957), as quoted in Johnsen (2000).
(9.) Cooper (2005) had already detailed President George W. Bush's use of the signing statement to the academic community the year before and noted how few, including the media and Congress, were aware of its use.
(10.) See Kernell and Rice (2005) for a discussion of the variety of language employed in SAP veto threats.
(11.) Their dependent variable is signing statements in general, not just those that announce nonenforcement of provisions because of constitutional concerns.
(12.) Two research assistants and I separately coded each document so that each was reviewed by at least two coders. Intercoder reliability was 86.7%. I reviewed and refereed each case of disagreement.
(13.) This is a narrower definition than that offered by Kelley and Marshall (2006b), thus I have fewer cases than they do in their "constitutional" category of signing statements.
(14.) Each signing statement may identify multiple provisions that meet these criteria; Bush averaged far more provisions per statement than Clinton.
(15.) While Kelley and Marshall (2008) find a positive relationship between the total number of signing statements (constitutional and otherwise) and divided government, they also note Bush's heavy use of constitutional signing statements as unilateral action to supplement bargaining gains.
(16.) A Government Accountability Office investigation into compliance with signing statements found that of 29 provisions investigated, agencies only failed to carry out the provision as written by Congress for nine of them (Kepplinger 2008).
(17.) This may persist until the Court enters the debate with a ruling. It is not entirely clear how they would decide. Justice Alito wrote in support of signing statements and lower court rulings can be marshaled in support of either side (for a discussion of these, see Johnsen 2000).
Laurie L. Rice is an assistant professor of political science at Southern Illinois University Edwardsville. Her research focuses on presidential influence as well as presidential campaigns and civic engagement.
TABLE 1 Bills into Law, Signing Statements, and Statements of Administration Policy Laws That Laws That Generated Total Number Generated Signing of Bills Signing Statements Signed into Statements and SAPS Congress/Years Law (percent) (percent) 105th 394 22.3 55.7 1997-1998 (N = 88) 106th 580 20.2 31.6 1999-2000 (N = 117) Total 105th and 974 21.1 42 106th (Clinton) (N = 205) 107th 377 15.4 44.8 2001-2002 (N = 58) 108th 498 10.4 40.4 2003-2004 (N = 52) Total 107th and 875 12.6 42.7 108th (Bush) (N = 110) Total 1,849 17 42.2 (N=315) Laws That Laws with Generated Disregard Disregard Signing Signing Statements Statements and SAPs Congress/Years (percent) (percent) 105th 4.6 50 1997-1998 (N = 18) 106th 4.0 47.8 1999-2000 (N = 23) Total 105th and 4.2 48.8 106th (Clinton) (N = 41) 107th 5.3 50 2001-2002 (N = 20) 108th 6.2 54.8 2003-2004 (N = 31) Total 107th and 5.8 52.9 108th (Bush) (N = 51) Total 5.0 51.1 (N=92) TABLE 2 The Content of SAPS for Disregard Signing Statements, by President Bill Clinton Content of SAPS N Percent Veto threat over current content 10 50 Veto threat over potential amendments only 0 0 Specific provisions opposed but no veto 8 40 threat Overall support for content with mentions 0 0 of additions that would improve the bill or vague mentions of undefined concerns Pure support 2 10 Total 20 100 George W. Bush Content of SAPS N Percent Veto threat over current content 6 22.2 Veto threat over potential amendments only 1 3.7 Specific provisions opposed but no veto 15 55.6 threat Overall support for content with mentions 3 11.1 of additions that would improve the bill or vague mentions of undefined concerns Pure support 2 7.4 Total 27 100 Total Content of SAPS N Percent Veto threat over current content 16 34 Veto threat over potential amendments only 1 2.1 Specific provisions opposed but no veto 23 48.9 threat Overall support for content with mentions 3 6.4 of additions that would improve the bill or vague mentions of undefined concerns Pure support 4 8.5 Total 47 100