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Looking before Watergate: foundations in the development of the constitutional challenges within signing statements, FDR-Nixon.

The people of this country did not elect me to this office to preside over its erosion. And I intend to turn over this office with all of its responsibilities and powers intact to the next man who sits in this chair.

--President Lyndon B. Johnson (Johnson 1965)

I am mindful not only of preserving executive powers for myself, but for predecessors as well. (1)

--President George W. Bush (Kilgannon 2001)

Presidential signing statements have become a multifaceted tool of presidential power. When a president signs a bill into law he often places a signing statement into the

legislative history of the bill. These statements serve a wide variety of purposes for presidents. According to Cooper (2002, 199-230), the president uses these statements to provide recognition for political allies and supporters, make political points, leverage the legislature, prompt or influence judicial action, and establish the legitimacy of their actions. The effectiveness of signing statements at accomplishing these goals is the subject of considerable debate, but presidents have certainly come to rely on signing statements as another tool to help get traction in these important areas.

Sometimes signing statements include constitutional challenges to provisions of legislation. President Johnson's quotation above is taken from one of these statements, and it shows how presidents use them in an attempt to defend their institution. It is mainly these constitutional challenges that stimulate the interest of scholars, members of Congress, and the media. In many situations the president is asserting that he will not implement a law, or that he will implement it in a manner consistent with his view of the constitutional order. Although signing statements have contained these sorts of challenges since the early years of the United States, (2) challenges were relatively rare until after World War II (May 1998). Challenges escalated after the Reagan administration was able to get signing statements included in the legislative history of a bill during the 1980s (Kelley 2007). And challenges went to new heights under President G. W. Bush, who issued more constitutional challenges than all of the previous presidents combined (Kelley 2008). According to Berry (2009), the growth of challenges is closely linked to the growth of statutes that contain legislative vetoes.

This article investigates how the presidents' assertion of constitutional challenges via signing statements has evolved over the course of the modern presidency. Most scholars have focused heavily on signing statements from Reagan forward. Less attention has been given to presidents prior to Reagan and even less to the pre-Watergate presidents. (3) This is surprising given the importance of building precedent in the development of presidential power. Cooper (2002, 219-20) notes that presidents, bureaucrats, and even lobbyists, have cited past signing statements in their efforts to establish the legitimacy of their current actions.

In order better to understand the development of constitutional challenges over the modern presidency, I focus on the time period from FDR to Nixon. Specifically, I ask: how did the signing statements of this period of the modern presidency shape the development of the tool and contribute to its institutionalization? This focus will help fill out the history of signing statements and illustrate the role of the institutionalization of precedential reasoning in the presidency's efforts to defend its prerogatives. To accomplish this task, I make use of a content analysis of all 626 signing statements from 1933 to 1974. (4)

These data provide a detailed view of signing statements from this era and reveal the importance of the presidents from FDR to Nixon in developing the constitutional argumentation against legislation perceived as threatening to the presidency. In particular, I will argue that the administrations of Eisenhower, Johnson, and Nixon played a substantial role in building the precedent necessary for the expansion of this power by subsequent presidents. This argument pushes back against the idea that the presidential assertion of constitutional challenges to legislation is a pendulum motion in response to the congressional assertion of power after the Watergate scandal. I suggest, rather, that the process of using signing statements as a means to protect presidential prerogative was well under way and cultivated by presidents and their lawyers in earlier periods; events after Watergate simply amplified a trend that was already in place. A great deal of the constitutional logic used in contemporary signing statements was indeed rigorously developed during this earlier period and was embedded in the institutional memory of the Office of Legal Counsel (OLC) in the Department of Justice (DOJ) well before the Reagan administration.

Signing Statements, the Unitary Executive, and Legislative Vetoes: The Literature

Presidents have long sought to protect their institution from perceived constitutional encroachments by Congress. As Calabresi and Yoo (2008) argue on the basis of an extensive historical survey, presidents since Washington have consistently resisted legislative encroachments on what these authors classify as the three distinct components of the "unitary executive": "the president's power of removal, the president's power to direct subordinate executive officials, and the president's power to nullify or veto subordinate executive officials' exercise of discretionary executive power" (Calabresi and Yoo 2008, 14). While Calabresi and Yoo focus on the consistency of presidential assertions of constitutional prerogatives, other scholars emphasize the actions of conservative lawyers in the 1970s, '80s, and '90s in elaborating the modern version of the strongly unitary executive (see Kelley 2003, 2007, 2010; Skowronek 2009, 2073).

In particular, Christopher Kelley has argued that, while the unitary executive theory surely goes back to the constitutional framing, its constitutional logic was elaborated and its practical significance elevated in the Reagan administration through the use of presidential signing statements (2003, 2007, 2010). Reagan's Executive Orders 12,291 and 12,498 placed the Office of Management and Budget into a more central role in regard to agency rulemaking (Kelley 2003, 185). Second, the Justice Department under Reagan pursued an aggressive strategy of protecting presidential prerogatives and was emboldened in this effort by Supreme Court decisions that legitimated the signing statement as a presidential tool (Kelley 2003, 185). (5) The Court even sided with the Reagan administration on several important decisions that took into account presidential interpretation of poorly defined sections of law in the absence of clear congressional intent (Kelley 2003, 185). Lastly, the decision in 1986 to include signing statements in legislative history gave new levels of credibility to the tool (Kelley 2003, 185). After the Reagan administration accomplished these important feats, the Bush and Clinton administrations further embedded the unitary executive and the signing statement into the presidential portfolio of tools for constitutional conflict, and all presidents since Reagan have adopted similar language in asserting a perceived constitutional right to "supervise the unitary executive" (see Cooper 2005; Evans 2011; Woolley and Peters 2011). (6)

Despite the significance of developments taken in the 1980s, the literature also reveals strong indications that the period of the early modern presidency also deserves close scrutiny. This is especially the case because of the obvious conflict between the unitary executive and the legislative veto. The legislative veto--a statute that creates a "congressional review, deferral, approval or disapproval of proposed executive actions" (Norton 1976, 1)--was first used in 1932 (Berry 2009, 247). As its use expanded, presidents took note, and Cooper (2002, 209) and Dellinger (1993) both observe that after Eisenhower, it became common for presidents to lodge constitutional objections to legislative vetoes. And although the 1983 case, INS v. Chada, "struck down nearly 300 legislative vetoes enacted by Congress over a span of 50 years" (Berry 2009, 247), the veto lives on in modified form (Berry 2008), meaning presidents have had a consistent target at which to aim their unitary executive arrows for almost 80 years. Figure 1 uses comparable data from two recent studies on presidential signing statements (Berry 2009; Thrower 2011) to show the intertwined growth of legislative vetoes and presidential challenges to the constitutionality of bills passed by Congress.

The figure demonstrates that the two grow simultaneously and track one another] Berry (2009, 262) provides similar evidence using data from 1973 to 2006; he shows that legislative veto provisions in legislation are a significant factor that increases the likelihood of challenges from the president in signing statements. It appears that the unitary executive, the signing statement, and the legislative veto are connected, and that the history of their entanglement has not been completely mapped.

This research project seeks to map additional terrain in the development of constitutional challenges in signing statements by looking at the actions of presidential administrations that do not traditionally receive as much attention in such analyses, those from FDR to Nixon. Clearly, the Reagan administration did a great deal for the development of signing statements, but I argue that Reagan built upon a foundation that was well established. Significantly, this argument challenges familiar notions of the dynamics that drive the process of interbranch conflict, placing greater emphasis upon a process of slow, even tedious, institution-building, and less upon the familiar drama of presidents slugging it out with a periodically assertive legislative branch.

Institutionalizing the Precedential Defense of the Presidency: The Argument

The key actor in fashioning constitutional challenges that appear in presidential signing statements is the OLC in the DOJ (Kelley 2003, 30). This office was created in 1950, under the name of the Executive Adjudications Division of the DOJ, and took its modern name three years later. Prior to 1950, the duty of creating legal opinions fell on the shoulders of the attorney general and the solicitor general (Morrison 2010, 1459-60). Naturally, these lawyers placed heavy reliance upon the decisions of their predecessors (Morrison 2010, 1471). As Attorney General Caleb Cushing explained in 1854, "the opinions of successive Attorneys General, possessed of greater or less amount of legal acumen, acquirement, and experience, have come to constitute a body of legal precedents and exposition, having authority the same in kind, if not the same in degree, with decisions of the courts of justice" (as quoted in Morrison 2010, 1472).

With the creation of the OLC, the search for precedent was given a new home, with institutional memory and resources. Though the OLC is sometimes portrayed as a roosting place for untethered legal theorizing, in fact it too places considerable weight upon precedent. Walter Dellinger, a former head of the OLC, has said that "[lawyers in the OLC] are expected to look to the previous opinions of the Attorneys General and of heads of this office to develop and refine the executive branch's legal positions" (Dellinger 1995, 110). Morrison confirms with his empirical analysis of all publically available OLC opinions from Carter through Obama's first year in office that precedent largely determines how the OLC makes its legal opinions (Morrison 2010).

The proposition to be elaborated below is that the advent of the OLC in the early 1950s represented an important expansion of the executive branch's ability to systematize the interpretation of law in light of the Constitution. In other words, the creation of this office and its indebtedness to one of the most traditional attributes of legal reasoning--the following of precedent--enabled presidents to exert themselves more forcefully and consistently in their challenges to the legislative provisions that come across their desks.

Data and Methods

The following analysis is based upon a hand-coded content analysis of all 626 signing statements from 1933 to 1974. One characteristic that is important for the purpose of this study is whether or not each signing statement includes constitutional challenges. Each challenge is categorized using a typology similar to Kinkopf and Shane's (2009) database of presidential signing statements from 2001 to 2009. (8) This typology documents the types of constitutional arguments given as the justification for each challenge as explained by the president. (9) If the president does not explain the constitutional grounds of the challenge, then the coder can use the context of the statement to place the challenge in a category. If the context gives no clear answer as to the appropriate categorization, then it is coded as an "unspecified constitutional objection." These data are used to describe and compare of the types of challenges most prevalent in each presidency from FDR through Nixon.

Establishing Precedent in Constitutional Challenges, FDR-Nixon

While challenges were still unusual events from FDR through Nixon, this is the period where their ascendance begins. Presidents Roosevelt and Kennedy did not issue any signing statements with constitutional challenges. (10) But Truman, Eisenhower, Johnson, and Nixon issued 28 constitutional signing statements over this period with 35+ challenges to provisions of law contained within (see Table 1). (11)

Truman

As Table 1 shows, President Truman only issued two constitutional signing statements that made challenges to two provisions of law. These challenges can be categorized as raising three specific types of objections. First, Truman noted his concern over a provision in an appropriations bill signed on May 12, 1949. That provision restricted the use of funds for paying the salaries of several officials in the Interior Department, including the commissioner, the assistant commissioners, and the regional directors of the Bureau of Reclamation (Truman 1949). Truman (1949) stated that the original rider that the new provision continues "violated the spirit, if not the letter, of the Constitutional provisions for separation of legislative and executive functions and the Constitutional prohibition against bills of attainder. There can be no justification for the use of the appropriation power for such a purpose." A bill of attainder is a declaration of the legislature that finds an individual or group guilty of a crime and punishes them without a trial. This is clearly prohibited under article I, section 9, of the Constitution, which places limits on the powers of Congress. This represented a significant point of contention but one rarely at issue between the president and Congress.

Second, the president also included a general separation of powers claim in this same passage when he noted that it violates "separation of legislative and executive functions" (Truman 1949). This type of objection is typical of the time period and, unlike here, is often coupled with complaints concerning legislative vetoes.

Finally, in a different signing statement from September 6, 1950, President Truman issued a constitutional challenge to a provision that authorized loans to assist Spain. This challenge is general in nature. Truman did not offer an explanation as to why he considered the provision unconstitutional, and the context of the claim did not aid in its categorization either. (12)

These signing statements are of a relatively weak variety. The first constitutional signing statement dealing with the salary issue simply stated that the provision should be terminated and that the president is confident that the Congress would take that action. In other words, there is no direct claim that the president would alter enforcement of the provision if the Congress did not act. The second signing statement concerning loans to Spain gave the president's interpretation of the provision as an authorization rather than a directive.

Truman's constitutional signing statements do not explain the legal logic for his objections and are generally vague. Also, he simply did not make many challenges to provisions of legislation. As such, his role in developing precedent through the use of signing statements and impacting the future use of the tool is relatively minor, especially since the bill of attainder issue is clear in the Constitution. Presidents Eisenhower, Johnson, and Nixon provided much more in the way of building the logic of challenges for future presidents.

Eisenhower

President Eisenhower is the most aggressive president during this time period in his constitutional challenges. He issued the most constitutional signing statements (10), the most challenges to sections of law (13+), and used several different types of claims in his objections (5).

The most prevalent type of argument that the president used in his constitutional objections involved executive privilege (4+). When signing a bill that amended the Mutual Security Act of 1954, Eisenhower (1959) claimed, "the three amendments relating to disclosure are not intended to alter and cannot alter the recognized Constitutional duty and power of the Executive with respect to the disclosure of information, documents, and other materials." Presidents all the way back to Washington and Jefferson made this sort of claim, but they were not legitimized until the 1974 case of United States v. Nixon (Dorf 2002). (13) Thus, Eisenhower joined and added to a long string of precedent on this vague constitutional matter before the Supreme Court weighed in on the subject. (14)

Another type of objection that Eisenhower used at least twice regards the president's authority over foreign affairs, which is a strong point for the president in the Constitution. When signing the Fish and Wildlife Act of 1956, President Eisenhower drew a line in the sand in regard to this prerogative. He stated,

In signing this bill, I do not regard as a directive the provisions of section 8 which relate to United States representation at international conferences and negotiations concerning fish and wildlife matters. If they were to be so construed they would, in my judgment, be unconstitutional as limitations on the authority of the President of the United States to conduct negotiations with other governments through agents designated by him or at his direction. Accordingly, I regard these provisions as merely an indication of the desire of the Congress that the resources of the Interior Department be utilized in the formulation of United States policies affecting fish and wildlife matters, which of course I fully share and which is and has been my policy (Eisenhower 1956a).

This example reveals President Eisenhower's determination to protect the ability of his administration to negotiate with foreign governments in the manner that he sees fit. (15) The other case shows similar motivation.

Lastly, President Eisenhower offered strong argumentation against the legislative veto. Eisenhower prefigured in fact some of the same reasoning the Court relied upon nearly 30 years later in INS v. Chada (1983). He claimed that the legislative veto provision in the Small Reclamation Projects Act of 1956 is a violation of the Constitution regardless of whether it is viewed as a legislative or an executive act. If viewed as legislative in nature, Eisenhower (1956b) stated that "the section is open to the objection that it involves an unlawful delegation by the Congress to its committees of a legislative function which the constitution contemplates the Congress itself, as an entity, should exercise." This objection rejected the legislative veto based on the fact that Congress was not going through the legislative process prescribed by the Constitution to implement a legislative act. In other words, Congress was not respecting bicameralism because it gave legislative powers to one committee. And, Congress was not respecting presentment because it did not give the president the opportunity to veto or sign the legislative act to make it law.

Eisenhower (1956b) continued his interpretation by offering the logic behind the objection if the provision is seen as an executive action, which he felt was simply a violation of the separation of powers in two different ways. First, the president claimed that Congress could not validly delegate to one of its committees, "the power to prevent executive actions taken pursuant to law" (Eisenhower 1956b). Second, Eisenhower (1956b) asserted that "the negotiation of and execution of a contract is a purely executive function," and Congress could not "lodge in its committees or members the power to make such contracts." In his signing statements, President Eisenhower made a clear case for why legislative vetoes are a violation of the Constitution, and his successors would take that logic seriously. (16)

Johnson

Table 1 shows the level of commitment that President Johnson had in defending the institution against the legislative veto (6), and many of his general separation of powers claims (8) were attacking the same provisions. From late 1963 when he came into office till the end of his presidency, LBJ had 8 constitutional signing statements, 11+ challenges to provisions of law, and 4 different types of arguments for why those provisions were unconstitutional. The main focus of his challenges was to stymie the use of legislative vetoes by Congress.

Perhaps the best example of Johnson pushing back against Congress is his statement upon signing the Omnibus Rivers and Harbors Bill in October of 1965. With great rhetoric and detail in his explanation, President Johnson scolded Congress for including a legislative veto in section 201(a) of the law. He started off by telling Congress that he did not support and did not plan to implement the provision (Johnson 1965). Johnson (1965) claimed that to do so would make "the President a partner in the abdication of a fundamental principle of our Government--the separation of powers prescribed by the United States Constitution."

The president had already vetoed two bills with similar language earlier in the same year. Through those vetoes, LBJ made clear that he viewed this sort of behavior on behalf of Congress as unacceptable (Johnson 1965). President Johnson and his legal advisors truly believed that these provisions would "dilute and diminish the authority and powers of the Presidency" (Johnson 1965). The president concluded with this:

The people of this country did not elect me to this office to preside over its erosion. And I intend to turn over this office with all of its responsibilities and powers intact to the next man who sits in this chair.

So just as I would not want to infringe upon the power of the Senate or lessen the jurisdiction of the House or disregard the decisions of the Supreme Court, I do not want the legislative--through two committees--to encroach upon the responsibilities of the Presidency (Johnson 1965).

This quotation nicely reveals the reasons why presidents use constitutional objections in signing statements to protect the institution of the presidency from perceived encroachments from Congress. And it also shows the extent to which Johnson believed that legislative vetoes were a fundamental threat to the institution. As Calabresi and Yoo (2008) note, "Johnson opposed the legislative veto more vehemently than any other previous president" (345). This analysis shows that the president's constitutional objections were embedded in his signing statements.

Other signing statements during the Johnson administration attacked the legislative veto with similar vigor. The president surely knew that the actions of previous administrations, along with his own, built a solid foundation for challenging such congressional actions. In an earlier constitutional challenge Johnson (1963) claimed, "Four Attorneys General of the United States have held provisions of this nature unconstitutional." The president aggressively attempted to solidify the constitutional understanding of those previous administrations through the active use of signing statements.

LBJ also took a constitutional stand on the subject of due process. The Omnibus Crime Control and Safe Streets Act of 1968 contained a number of provisions that worried the president. These concerns revolved around wiretapping, eavesdropping, and provisions that potentially weakened requirements to let suspects have full and fair warning of their constitutional rights. The president insisted that the government would interpret these provisions in a manner that conforms to the Constitution (Johnson 1968). This statement is ironic given Johnson's well-documented willingness to use the Federal Bureau of Investigation for political espionage.

Last, President Johnson sought to protect his authority as commander in chief. According to the president, the Military Construction Authorization Bill created a long and burdensome waiting period in order to close military bases. Johnson (1966) insisted that his "responsibilities as President and Commander in Chief will require [him] to seek prompt revision of the restriction if future circumstances prove it to be inimical to the national interest." He did not say whether or not he would obey the provision if push came to shove, but he indicated that the restriction would have to be removed if a tension did arise.

Nixon

Much like Eisenhower and Johnson, Table 1 illustrates how President Nixon led a campaign against the use of legislative vetoes (5) with many of his general separation of powers claims linked to those provisions as well (6). The signing statement for the Second Supplemental Appropriations Act, 1972, illustrates this type of use nicely. President Nixon (1972a) sought to protect the office of the presidency from encroachments by Congress when he stated,

   I must comment briefly on one provision in the bill which I am
   advised by the Attorney General is an unconstitutional "coming into
   agreement" clause, infringing on the fundamental principle of the
   separation of legislative and executive powers.

   This provision is in the appropriation for "Construction, Public
   Buildings Projects" of the General Services Administration. The
   bill appropriates definite sums for three public buildings projects
   but conditions the availability of the appropriation on the
   approval by the committees on public works of revised prospectuses
   for these buildings.


As Fisher (1998, 93-94) notes, a "coming into agreement" clause is a legislative veto at the committee level. In this case, the committees on public works could disrupt the construction of three public buildings projects that were being overseen by the General Services Administration. The law bestowed that power upon the committees without requiring new legislation in either chamber or the president's signature. In other words, the committees were potentially violating both bicameralism and presentment while usurping a function of the executive branch.

President Nixon actively pursued eliminating the committee-based legislative veto from the books. At the end of his signing statement Nixon (1972a) asserted that he would submit a budget amendment to the Congress to get rid of the unconstitutional problem. President Nixon succeeded in his effort. (17) He signed a repeal of the provision six weeks later (May 1998, 87).

These challenges should come as no surprise given Nixon's steadfast desire to control the bureaucracy. According to Richard Nathan's (1975) book, The Plot that Failed, Nixon aggressively tried "to move the line between policy and administration in government" by "deploying his appointees as politician-managers" (9). He viewed the bureaucracy with a great deal of suspicion and his resistance to congressional control was likely heightened as a result.

Ultimately, the steadfast rejection of legislative vetoes by President Nixon supplemented the work of his predecessors. The hearty objections to these types of provisions by the Eisenhower, LBJ, and Nixon administrations established a base upon which Ford and Carter would add. Seeing the opportunity in front of them, the Reagan administration legal team constructed the unitary executive on top of this sturdy foundation. The presidents of the pre-Watergate era (Nixon included) deserve their fair share of credit, or blame, for moving this process along.

Discussion and Conclusion

Louis Fisher (2010) points out that the legislative veto is the result of an informal bargain struck between Congress and executive agencies. It offers benefits to both sides. Congress benefits because they can monitor and control agency actions without having to pass more legislation, and agencies, in return, will receive greater discretionary authority (Fisher 2010, 32). For this reason, INS v. Chada (1983) did little to slow the legislative veto. In fact, as Berry (2009) points out, the use of vetoes has increased after the decision and are now of a more dubious form (committee-based). With this in mind Fisher (2010, 35) concludes,

   Advocates of the unitary executive focus on what presidents say in
   their signing statements. It is no doubt true that presidents are
   quite consistent in the years after Chada in indicating in their
   signing statements that a committee veto included in a bill is
   contrary to Chada and will not be considered legally binding. It is
   equally true, and far more important, that agencies nonetheless
   continue to seek approval from their review committees. Instead of
   looking solely at what presidents say, it would be useful for
   scholars of the unitary executive to look at what agencies do. It
   would help eliminate descriptions about some sort of idealized and
   centralized world that does not exist.


Many of those in the popular media and some scholars overemphasize the extent to which signing statements influence the implementation of law. In fact, we know very little about how they do. Fisher (2010) is exactly right in this respect--scholars need to look more closely at how signing statements influence implementation. Certainly, the president has the tremendous burden of persuading bureaucrats to follow his interpretation of the law rather than Congress's when there is a conflict. And often he fails.

However, what the president says is still vitally important even if we are not currently seeing the results. Clearly, the Court heard what numerous presidents from FDR to Nixon had to say in regard to legislative vetoes. In INS v. Chada (1983, 942) the Court stated that 11 presidents, "from Mr. Wilson through Mr. Reagan, who have been presented with this issue have gone on record at some point to challenge congressional vetoes as unconstitutional." What presidents say in their signing statements may not impact the implementation of law today, but it can set the terms of constitutional debate and set precedent for future administrations. This is particularly true given the nature of precedential opinion formation in the DOJ (Morrison 2010).

As noted previously, many explanations of the development of the presidential signing statement understate the actions of administrations prior to the Reagan presidency. Throughout this article I have attempted to move back the starting date of this discussion because of the important contributions of the presidents during the period from FDR to Nixon in establishing precedent for the development of the tool. In the end, this article shows that Watergate should be considered an amplifier for a process already well under way.

That trend was established principally by the Eisenhower, Johnson, and Nixon administrations, which built the precedents upon which future presidents would base their constitutional claims and bolster their constitutional defense of presidential prerogatives.

President Eisenhower's constitutional challenges made contributions to the development of argumentation for executive privilege, the authority of the president in foreign affairs, and the right of the president to combat legislative vetoes. Aiding Eisenhower's cause, President Johnson aggressively took on the legislative veto. He further developed the arguments of prior attorneys general and fully elaborated them in his signing statements in a manner that no previous president had done. He eloquently foreshadowed the reasoning found in INS v. Chada (1983) roughly 20 years prior to the ruling. In this same vein Nixon also pushed back against the legislative veto, particularly those where the veto power was lodged in congressional committees. Nixon also elaborated upon the arguments of Eisenhower. He actively sought to protect the president's authority in foreign affairs and to withhold information from Congress. Even though the challenges during this period were small in number, they were meaningful in impact.

While Kelley (2003) gives credit to Ford and Carter for pouring the foundation upon which Reagan was able to erect the unitary executive and thus institutionalize signing statements, and Conley (2011) considers the Ford and Carter presidencies a "punctuated equilibrium" stage in the usage of signing statements (566), the argument presented here shows that these presidents were indebted to prior administrations. If Ford and Carter poured the foundation, Eisenhower, Johnson, and Nixon mixed the cement.

This is true, moreover, with regard to a wide range of constitutional issues related to presidential power. The institutionalization and precedential nature of the OLC helped carry forward a range of arguments that tilt in favor of a strongly unitary executive. Finally, the story presented above suggests the power of an institution-based perspective on the dynamics of constitutional conflict between the elected branches. The presidential use of signing statements to push back against Congress clearly does not owe its origins to the sharp partisan or ideological divisions that characterized interbranch conflict in the post-Watergate era.

Appendix

Types of constitutional challenges with code number (Expanded version of Kinkopf and Shane 2009)

1. Recommendations Clause

2. Bicameralism and presentment (legislative vetoes)

3. Unitary executive

4. President's authority over foreign affairs

5. Commander-in-chief authority

6. Appointments Clause

7. President's authority to withhold information, including information relating to national security and to classify information

8. President's authority to withhold information, not including national security matters

9. Equal protection and due process

10. Federalism

11. Unspecified separation of powers

12. First Amendment

13. Nondelegation doctrine

14. Opinions Clause

15. Article II (including the Vesting Clause and the Take Care Clause)

16. Fourth Amendment

17. Constitutional limits on the judicial power

18. Judicial independence

19. Constitutional immunities

20. Congressional aggrandizement (Bowsher v. Synar)

21. Removal power

22. Recess appointments

23. Article III case or controversy requirement

24. Ineligibility clause

25. Bill of attainder

97. Vesting executive power in an independent board or commission

98. Article I--enacting law not authorized by Constitution (needs amendment)

99. Unspecified constitutional objection

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Kelley, Christopher S., Bryan W. Marshall, and Deanna J. Watts. 2011. "Who's Listening? The Rhetorical Presidency and Media Coverage of the Signing Statement." Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, IL. http://conference.mpsanet.org/papers/ archive.aspx/2011/102599 (accessed January 6, 20 l 2).

Kilgannon, Corey. 2001. "Jan. 28-Feb. 3; Keeping an Ear on Bush." New York Times, February 4. http://www.nytimes.com/2001/02/04/weekinreview/ jan-28-feb-3-keeping-an-ear-on-bush.html.

Kinkopf, Nell, and Peter M. Shane. 2009. "Signed Under Protest: A Database of Presidential Signing Statements, 2001-2009." In Public Law and Legal Theory Working Paper Series No. 118: The Ohio State University, Moritz College of Law.

May, Christopher N. 1998. Presidential Defiance of "Unconstitutional" Laws. Westport, CT: Greenwood Press.

Morrison, Trevor W. 2010. "Stare Decisis in the Office of Legal Counsel." Columbia Law Review 110: 1448-1525.

Nathan, Richard P. 1975. The Plot that Failed: Nixon and the Administrative Presidency. New York: John Wiley & Sons.

Nixon, Richard M. 1969. Statement on Signing the National Science Foundation Authorization Act, 1970. http://www.presidency.ucsb.edu/ws/index.php?pid=2328 (accessed January 6, 2012).

--. 1972a. Statement about Signing the Second Supplemental Appropriations Act, i972. http://www. presidency.ucsb.edu/ws/index.php?pid=3434 (accessed January 6, 2012).

--. 1972b. Statement on Signing the Foreign Assistance Act of 1971, http://www.presidency.ucsb.edu/ ws/index.php?pid = 3727 (accessed January 6, 2012).

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Tiefer, Charles. 1994. The Semi-Sovereign Presidency: The Bush Administration's Strategy for Governing without Congress. Boulder, CO: Westview Press

Thrower, Sharece. 2011. "Considering the Court: Limits to the President's Use of Signing Statements." Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, IL. http://conference.mpsanet.org/papers/archive.aspx/2011 / 107093 (accessed January 6, 2012).

Truman, Harry S. 1949. Statement by the President upon Signing Temporary Appropriations Bill. http://www. presidency.ucsb.edu/ws/index.php?pid= 13452 (accessed January 6, 2012).

--. 1950. Statement by the President upon Signing the General Appropriation Act. http://www. presidency.ucsb.edu/ws/index.php?pid= 13606 (January 6, 2012).

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KEVIN A. EVANS

Florida International University

(1.) This quote is widely noted as a prominent "Bushism," because the president should have said 'successor" rather than "predecessor." Regardless of the mix-up, President George W. Bush clearly meant to relay the same message as President Johnson in the first quote. Ultimately, presidents are concerned with maintaining the integrity of the institution.

(2.) Kelley and Marshall (2008, 253) assert that President Monroe was the first to use the signing statement in order to refuse enforcement of a law; his objections were based on his commander-in-chief powers. Also, May (1998, 77) documents Andrew Jackson's objection to legislation that he felt exceeded the scope of national power under our constitutional system of federalism in 1830.

(3.) See Kelley (2003) and May (1998) for notable exceptions. Although both of these studies cover the early modern presidency in their data and contribute a great deal to our understanding in general, they do not go into much detail about how this period (FDR-Nixon) shaped the evolution of the signing statement and how it influenced modern uses. A recent study by Conley (2011) delves into the era under consideration here, but his work takes an approach that is more focused on the rhetorical nature of the statements during this period rather than a detailed exploration of the constitutional justifications provided by presidents for their challenges. That is exactly the task I undertake here (in the spirit of Cooper 2005 and Kinkopf and Shane 2009).

(4.) Signing statements are coded from The American Presidency Project's website (Woolley and Peters 2011).

(5.) In INS v. Chada (1983) the Court found that legislative vetoes violate the Presentment Clause and bicameralism. In the process of declaring legislative vetoes unconstitutional, presidential signing statements were recognized by the Supreme Court (Kelley 2003, 92). In their decision the Court stated that 11 presidents "from Mr. Wilson through Mr. Reagan, who have been presented with this issue have gone on record at some point to challenge congressional vetoes as unconstitutional" (INS v. Chada 1983, 942).

(6.) This is particularly true of George H. W. Bush's administration, which aggressively expanded the number of challenges per signing statement (see Figure 1). For more on the Bush administration's aggressive use of the signing statement, see Tiefer (1994, 31-60).

(7.) There are many who view signing statements as bad behavior on behalf of the presidency, but few commentators note that signing statements are often linked to bad behavior on behalf of Congress. This figure illustrates that case.

(8.) Cooper (2005) also uses a similar categorization when analyzing the challenges made in the first term of President G. W. Bush's presidency.

(9.) See the Appendix for a complete list of objection types.

(10.) Kelley (2003) and May (1998) attribute one constitutional signing statement to President Kennedy and Cooper (2002) references a challenge from FDR, but I cannot find evidence of these challenges. It is possible that these signing statements are not included in The American Presidency Project's database.

(11.) There was a minimum of 35 challenges during this period. "35+" is simply meant to indicate that there were some ambiguous challenges during this period that are not specific in regard to the number of provisions being objected to in the signing statement.

(12.) This challenge is likely associated with the president's authority to conduct foreign affairs, but the context of the signing statement did not provide enough information to make that claim with much certainty.

(13.) The Court recognized the need for protection of communications between high government officials and their advisors. In United States v. Nixon (1974) the justices felt that advisors who expected public dissemination of their remarks would temper their candor to the detriment of the decision-making process; yet, this privilege was not found to be absolute.

(14.) The section on President Nixon later in this article shows that he does this in his signing statements as well.

(15.) Note that Eisenhower actually agreed with the policy (ideological motivation), but disagreed with the limit on his authority (institutional motivation). This particular statement is about protecting the presidency, not tinkering with the details of public policy for ideological gain. This is quite different than the assertion made in Kelley and Marshall (2009) that, "Where a president fails to get Congress to move toward his preferred policy position during the veto bargaining process, he may employ the signing statement (so long as it does not rankle the collective will of Congress) to nudge legislation closer to his liking" (528).

(16.) A few administrations had elaborated these claims before, but Eisenhower was the first in this time period to do so in a signing statement.

(17.) This case highlights another use for signing statements--legislative requests. The president likely uses signing statements in a coordinated effort with other public appeals to put pressure on Congress to fix problems or omissions in the legislation he is signing. Sometimes presidents even use the opportunity to call for other legislation as well (usually, there is at least some connection). The signing of a bill into law provides the president with a big opportunity to request more out of Congress. Especially considering that recent research by Kelley, Marshall, and Watts (2011) reveals that signing statements increase news coverage of the new law. That increased coverage is an opportunity that the president does not want to waste. Currently, there is no scholarly research on the legislative requests within signing statements.

AUTHOR'S NOTE: The author would like to thank Erik Engstrom, Walt Stone, and Ethan Scheiner for their thoughtful comments on earlier drafts of this article.

Kevin A. Evans is an assistant professor in the Department of Politics and International Relations at Florida International University. His research primarily focuses on interbranch relations and presidential power.

TABLE 1
Types of Constitutional Arguments found in Signing Statements and
Totals (Truman,  Eisenhower, Johnson, and Nixon)

                                                      Truman
Constitutional Arguments                             ('45-'52)

Article I--Enacting a law not authorized by the         --
  Constitution
Bicameralism and presentment (legislative veto)         --
Bill of attainder                                        1
Commander in chief                                      --
Equal Protection and Due Process                        --
President's authority over foreign affairs              --
President's authority to withhold information           --
  (executive privilege)
Separation of powers (general)                           1
Unspecified constitutional objection                     1
Vesting executive power in an independent board         --
Total # of types                                         3
Total # of constitutional signing statements             2
Total # of challenges                                    2
Total # of ambiguous challenges                          0

                                                     Eisenhower
Constitutional Arguments                              ('53-60)

Article I--Enacting a law not authorized by the          --
  Constitution
Bicameralism and presentment (legislative veto)          3
Bill of attainder                                        --
Commander in chief                                       --
Equal Protection and Due Process                         --
President's authority over foreign affairs               2+
President's authority to withhold information            4+
  (executive privilege)
Separation of powers (general)                           3+
Unspecified constitutional objection                     3+
Vesting executive power in an independent board          --
Total # of types                                         5
Total # of constitutional signing statements             10
Total # of challenges                                   13+
Total # of ambiguous challenges                          4

                                                      Johnson
Constitutional Arguments                             ('63-'68)

Article I--Enacting a law not authorized by the         --
  Constitution
Bicameralism and presentment (legislative veto)          6
Bill of attainder                                       --
Commander in chief                                       1
Equal Protection and Due Process                        1+
President's authority over foreign affairs              --
President's authority to withhold information           --
  (executive privilege)
Separation of powers (general)                           8
Unspecified constitutional objection                    --
Vesting executive power in an independent board         --
Total # of types                                         4
Total # of constitutional signing statements             8
Total # of challenges                                   11+
Total # of ambiguous challenges                          1

                                                       Nixon
Constitutional Arguments                             ('69-'74)

Article I--Enacting a law not authorized by the          1
  Constitution
Bicameralism and presentment (legislative veto)          5
Bill of attainder                                       --
Commander in chief                                      --
Equal Protection and Due Process                        --
President's authority over foreign affairs              1+
President's authority to withhold information            1
  (executive privilege)
Separation of powers (general)                           6
Unspecified constitutional objection                    --
Vesting executive power in an independent board          1
Total # of types                                         6
Total # of constitutional signing statements             8
Total # of challenges                                   9+
Total # of ambiguous challenges                          1

Note: The value in each cell for "Constitutional Arguments"
represents the number of challenges where that  argument was used as
the justification for the challenge or could be inferred from the
context to be the  justification. Any value with a "+" is the result
of an ambiguous challenge, which does not specify the number  of
provisions that are being challenged in the law. There can be
multiple challenges per constitutional SS.


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Author:Evans, Kevin A.
Publication:Presidential Studies Quarterly
Article Type:Essay
Geographic Code:1USA
Date:Jun 1, 2012
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