The Legal Significance of Presidential Signing Statements

Many Presidents have used signing statements to make substantive legal, constitutional, or adm inistrative pronouncements on the bill being signed. These uses of Presidential signing statements generally serve legitimate and defensible purposes.

November 3, 1993 

M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t

This memorandum provides you with an analysis of the legal significance of 

presidential signing statements. It is addressed to the questions that have been 

raised about the usefulness or validity of such statements. We believe that such 

statements may on appropriate occasions perform useful and legally significant 

functions. These functions include: (1) explaining to the public, and particularly to 

constituencies interested in the bill, what the President believes to be the likely 

effects of its adoption; (2) directing subordinate officers within the executive 

branch how to interpret or administer the enactment; and (3) informing Congress 

and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, 

and that the provision will not be given effect by the executive branch to the extent 

that such enforcement would create an unconstitutional condition.1

These functions must be carefully distinguished from a much more controversial 

— and apparently recent — use of presidential signing statements, i.e., to create 

legislative history to which the courts are expected to give some weight when construing the enactment. In what follows, we outline the rationales for the first three 

functions, and then consider arguments for and against the fourth function.2 The 

Appendix to the memorandum surveys the use of signing statements by earlier 

Presidents and provides examples of such statements that were intended to have 

legal significance or effects.

I.

To begin with, it appears to be an uncontroversial use of signing statements to 

explain to the public, and more particularly to interested constituencies, what the

1 In addition, signing statem ents have frequently been used for purposes o f little or no legal or constitutional significance, e.g., to applaud or criticize the policy behind certain provisions, to advise C ongress how 

the President will respond lo future legislation, to condem n practices such as attaching riders to om nibus 

bills, to congratulate mem bers o f Congress or the public who have assisted in the bill’s passage, and so forth

2 We do not in this m em orandum attem pt to reach a definitive conclusion on the question w hether the use 

of signing statements to create legislative history on which the courts are to rely is or is not legitim ate We 

would be pleased to provide you with further research and analysis on that question should you so desire.

131
Opinions o f th e Office o f Legal Counsel

President understands to be the likely effects of the bill, and how the bill coheres or 

fails to cohere with the Administration’s views or programs.3

A second, and also generally uncontroversial, function of presidential signing 

statements is to guide and direct executive officials in interpreting or administering 

a statute. The President has the constitutional authority to supervise and control 

the activity of subordinate officials within the executive branch. See Franklin v. 

Massachusetts, 505 U.S. 788, 800 (1992). In the exercise of that authority he may 

direct such officials how to interpret and apply the statutes they administer.4 Cf

Bowsher v. Synar, 478 U.S. 714, 733 (1986) (“[interpreting a law enacted by 

Congress to implement the legislative mandate is the very essence of ‘execution’ of 

the law.”). Signing statements have frequently expressed the President’s intention 

to construe or administer a statute in a particular manner (often to save the statute 

from unconstitutionality), and such statements have the effect of binding the statutory interpretation of other executive branch officials.5

A third function, more controversial than either of the two considered above, is 

the use of signing statements to announce the President’s view of the constitutionality of the legislation he is signing. This category embraces at least three species: 

statements that declare that the legislation (or relevant provisions) would be unconstitutional in certain applications; statements that purport to construe the legislation 

in a manner that would “save” it from unconstitutionality; and statements that state 

flatly that the legislation is unconstitutional on its face. Each of these species of 

statement may include a declaration as to how — or whether — the legislation will 

be enforced.

Thus, the President may use a signing statement to announce that, although the 

legislation is constitutional on its face, it would be unconstitutional in various applications, and that in such applications he will refuse to execute it. Such a Presidential statement could be analogized to a Supreme Court opinion that upheld

3 For exam ple, on signing the Omnibus C rim e Control and Safe Streets Act o f 1968, President Johnson 

explained in som e detail how the wiretapping and eavesdropping provisions of the bill both agreed with and 

differed from his A dm inistration’s original proposals to C ongress, criticized C ongress’s decision to sanction 

certain law enforcem ent eavesdropping and w iretapping, asked C ongress to reconsider that decision, served 

notice that the D epartm ent o f Justice would continue to follow a narrow er policy o f confining wiretapping 

and eavesdropping to national security cases only, and urged caution and restraint on the states m exercising 

the pow ers that the bill allow ed them See I Pub. Papers o f Lyndon B Johnson 726-27 (1968-69). And 

President K ennedy signed an education bill “ with extrem e reluctance,” objecting to several provisions, including “the continuation of the discrim inatory and ineffective non-C om m um st disclaim er affidavit.” Pub.

Papers o f John F. K ennedy 637 (1961)

4 T here are, of course, lim its to this Presidential authority Thus, the President cannot read into the Im m igration and N ationality A ct protection for a class o f asylum seekers w hom Congress did not include among 

those eligible for asylum See M emorandum for the Attorney General, from W alter Dellinger, Acting A ssistant A ttorney G eneral, O ffice of Legal C ounsel at 3 (Aug. 20, 1993)

5 For exam ple, w hen signing legislation governing the recruitm ent o f agricultural workers from M exico, 

President K ennedy m ade clear that the Labor D epartm ent would adm inister it so as to protect “the wages and 

w orking conditions o f dom estic agricultural w orkers.” Pub. Papers o f John F K ennedy at 640 Similarly, 

President T rum an explained that the National Security C ouncil would m ake broad use of the powers given to 

it under a rider to a foreign aid bill restncting trade with the C om m unist bloc to create exceptions from such 

restrictions See P ub Papers o f Harry S. Trum an 319 (1951).

132
The Legal Significance o f Presidential Signing Statements

legislation against a facial constitutional challenge, but warned at the same time 

that certain applications of the act would be unconstitutional. Cf. Bowen v. Kendrick, 487 U.S. 589, 622-24 (1988) (O’Connor, J., concurring). Relatedly, a signing statement may put forward a “saving” construction of the bill, explaining that 

the President will construe it in a certain manner in order to avoid constitutional 

difficulties. See FEC v. NRA Political Victor)’ Fund, 6 F.3d 821, 824-25 (D.C. 

Cir. 1993) (Silberman, J., joined by Wald, J.) (citing two presidential signing 

statements adopting “saving” construction of legislation limiting appointment 

power), cert, dismissed, 513 U.S. 88 (1994). This, too, is analogous to the Supreme Court’s practice of construing statutes, if possible, to avoid holding them 

unconstitutional, or even to avoid deciding difficult constitutional questions.

More boldly still, the President may declare in a signing statement that a provision of the bill before him is flatly unconstitutional, and that he will refuse to enforce it. This species of statement merits separate discussion.6

In each of the last three Administrations, the Department of Justice has advised 

the President that the Constitution provides him with the authority to decline to 

enforce a clearly unconstitutional law.7 This advice is, we believe, consistent with 

the views of the Framers.8 Moreover, four sitting Justices of the Supreme Court 

have joined in the opinion that the President may resist laws that encroach upon his 

powers by “disregard[ing] them when they are unconstitutional.” Freytag v. Commissioner, 501 U.S. 868, 906 (1991) (Scalia, J., joined by O’Connor, Kennedy and 

Souter, JJ., concurring in part and concurring in judgment).9

6 One reason such signing statements may be controversial is that the refusal to execute a statutory provision has substantially the effect o f a line-item veto.

7 See, e.g , The Attorney G eneral’s D uty to D efend and Enforce C onstitutionally O bjectionable Legislation, 4A Op O L C 55, 59 (1980) (Civiletti, AG); Recom m endation that the D epartm ent o f Justice not

D efend the Constitutionality o f Certain Provisions o f the Bankruptcy Am endm ents and F ederal Judgeship

Act o f 1984, 8 Op. O.L C 183, 195 (1984). This advice is consistent with that given by A ttorneys G eneral to 

earlier Presidents, including Presidents Buchanan, see M em orial o f Captain M eigs, 9 O p A tt'y Gen. 462, 

469-70 (I860), and W ilson, see Income Tax — Salaries o f President and Federal Judges, 3 1 O p A tt’y Gen 

475, 476 (1919), that the President was not bound by a law that unconstitutionally encroached on his pow ers

8 For exam ple, James W ilson, a prom inent Framer, legal theorist, and later A ssociate Justice o f the S u ­

prem e Court, told the Pennsylvania ratifiers that

the pow er of the Constitution was param ount to the pow er o f the legislature acting under that 

Constitution; for it is possible that the legislature . . . may transgress the bounds assigned to u, 

and an act may pass, in the usual mode, notw ithstanding that transgression; but when it com es to 

be discussed before the ju d g e s . it is their duty to pronounce it void . . In the sam e m anner,

the President o f the U nited States could shield himself, and refuse to carry into effect an act that

violates the Constitution

2 The D ebates in the Several State C onventions on the Adoption o f the Federal C onstitution 4 46 (Jonathan 

Elliot, ed., 2d ed 1836) (third em phasis added).

Also relevant (despite the fact that he did not attend the Philadelphia Convention) are the view s of T homas Jefferson. Believing that the Sedition Law was unconstitutional even though it had been upheld by the 

courts, Jefferson used his pow er as President to (in his own w ords) “rem it the execution" of the A ct by pardoning all offenders See Norman J. Small, Som e Presidential Interpretations o f the Presidency 21 (D a 

C apo Press 1970) (1932).

Further, as former Attorney General Civiletti has noted, the President refused to com ply with the A ct o f 

C ongress at issue in M yers v U nited States, 272 J S. 52 (1926), and the Solicitor G eneral argued that that 

Act was unconstitutional. Yet the Court ruled that the President’s action in defiance of the statute had been

133
Opinions o f the Office o f Legal Counsel

If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of 

an enactment he is signing. If so, then a signing statement that challenges what the 

President determines to be an unconstitutional encroachment on his power, or that 

announces the President’s unwillingness to enforce (or willingness to litigate) such 

a provision, can be a valid and reasonable exercise of Presidential authority.10 And 

indeed, in a recent decision by the United States Court of Appeals for the District 

of Columbia Circuit, FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 

1993), cert, dismissed, 513 U.S. 88 (1994), the court cited to and relied upon a 

Presidential signing statement that had declared that a Congressionally-enacted 

limitation on the President’s constitutional authority to appoint officers of the 

United States was without legal force or effect. Id. at 824-25.

The contrary view — that it is the President’s constitutional duty not to sign 

legislation that he believes is unconstitutional — has been advanced on occasion. 

For example, Secretary of State Thomas Jefferson advised President Washington in 

1791 that the veto power “is the shield provided by the constitution to protect 

against the invasions of the legislature 1. [of] the rights of the Executive 2. of the 

Judiciary 3. of the states and state legislatures.” Opinion on the Constitutionality 

of the Bill for Establishing a National Bank (Feb. 15, 1791), reprinted in 3 The

Founders’ Constitution 247 (Philip B. Kurland & Ralph Lerner eds., 1987). James 

Madison appears to have held a similar view and as President once vetoed a bill on 

constitutional grounds even though he supported it as a matter of policy. See 2 A

Compilation o f the Messages and Papers o f the Presidents 569, 570 (James D. 

Richardson ed., 1897) (“Messages”) (while praising the bill’s “beneficial objects,” 

Madison wrote that he “ha[d] no option but to withhold [his] signature from it” 

because he thought it unconstitutional). Jefferson and Madison, however, did not 

in fact always act on this understanding of the President’s duties: in 1803 President Jefferson, with Secretary of State Madison’s agreement, signed legislation 

appropriating funds for the Louisiana Purchase even though Jefferson thought the 

purchase unconstitutional. See 1 William M. Goldsmith, The Growth of Presidenlawful. It gave rise to no actionable claim for dam ages under the C onstitution or an Act o f Congress in the 

Court o f C laim s . . .

M yers holds that the President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day they are 

declared unconstitutional by the courts.

4A O p O L .C at 59

10 Indeed, m ore broadly, the President m ay use a signing statem ent as a vehicle to announce his unwillingness to accept a blatantly unconsututional statute, even if it does not encroach upon his prerogatives, but 

otherw ise violates a constitutional mandate. T he executive branch has from time to time challenged Acts o f 

C ongress for such reasons for example, it jo in e d the plaintiffs in U nited States v Lovett, 328 U S. 303, 306 

(1946), in attacking an unconstitutional bill o f attainder, and it intervened in Sim km s v. M oses H Cone

M em orial H osp., 211 F. Supp 628, 640 (M .D N C. 1962), rev'd, 323 F 2d 959 (4th Cir. 1963), cert denied,

376 U S 938 (1964), to contest the constitutionality of an Act o f C ongress that provided Federal funding for 

racially segregated hospitals.

134
The Legal Significance o f Presidential Signing Statem ents

tial Power 438-50 (1974). In light of our constitutional history, we do not believe 

that the President is under any duty to veto legislation containing a constitutionally 

infirm provision, although of course it is entirely appropriate for the President to 

do so.

II.

Separate and distinct from all the preceding categories of signing statements, 

and apparently even more controversial than any of them, is the use of such statements to create legislative (or “executive”) history that is expected to be given 

weight by the courts in ascertaining the meaning of statutory language. See Marc 

N. Garber & Kurt A. Wimmer, Presidential Signing Statements as Interpretations

of Legislative Intent: An Executive Aggrandizement o f Power, 24 Harv. J. on Legis. 363, 366 (1987). Although isolated examples can perhaps be found earlier, 

signing statements of this kind appear to have originated (and were certainly first 

widely used) in the Reagan Administration.

In 1986, then-Attorney General Meese entered into an arrangement with the 

West Publishing Company to have Presidential signing statements published for 

the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history. Mr. Meese explained the purpose of the 

project as follows:

To make sure that the President’s own understanding of what’s in a 

bill is the same . . . or is given consideration at the time of statutory 

construction later on by a court, we have now arranged with the 

West Publishing Company that the presidential statement on the 

signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction 

of what that statute really means.

Address by Attorney General Edwin Meese III, National Press Club, Washington, 

D.C. (Feb. 25, 1986), quoted in Garber and Wimmer, supra at 367.

We do not attempt finally to decide here whether signing statements may legitimately be used in the manner described by Attorney General Meese. We believe it 

would be useful, however, to outline the main arguments for and against such use.

In support of the view that signing statements can be used to create a species of 

legislative history, it can be argued that the President as a matter both of constitutional right and of political reality plays a critical role in the legislative process. 

The Constitution prescribes that the President “shall from time to time . . . recommend to [Congress’s] Consideration such Measures as he shall judge necessary and 

expedient.” U.S. Const, art. II, § 3, cl. 1. Moreover, before a bill is enacted into 

law, it must be presented to the President. “If he approve he shall sign it, but if not

135
Opinions o f the Office o f Legal Counsel

he shall return it, with his Objections to that House in which it shall have originated.” U.S. Const, art. I, § 7, cl. 2.11 Plainly, the Constitution envisages that the 

President will be an important actor in the legislative process, whether in originating bills, in signing them into law, or in vetoing them. Furthermore, for much of 

American history the President has de facto been “a sort of prime minister or ‘third 

House of Congress.’ . . . [H]e is now expected to make detailed recommendations 

in the form of messages and proposed bills, to watch them closely in their tortuous 

progress on the floor and in committee in each house, and to use every honorable 

means within his power to persuade . . . Congress to give him what he wanted in 

the first place.” Clinton Rossiter, The American Presidency 96 (Johns Hopkins 

Press 1987) (1956). It may therefore be appropriate for the President, when signing legislation, to explain what his (and Congress’s) intention was in making the 

legislation law, particularly if the Administration has played a significant part in 

moving the legislation through Congress. And in fact several courts of appeals 

have relied on signing statements when construing legislation. See United States v. 

Story, 891 F.2d 988, 994 (2d Cir. 1989) (Newman, J.) (citation omitted) (“though 

in some circumstances there is room for doubt as to the weight to be accorded a 

presidential signing statement in illuminating congressional intent, President Reagan’s views are significant here because the Executive Branch participated in the 

negotiation of the compromise legislation.”); Berry v. Department o f Justice, 733 

F.2d 1343, 1349-50 (9th Cir. 1984) (citing President Johnson’s signing statement 

on goals of Freedom of Information Act); Clifton D. Mayhew, Inc. v. Wirtz, 413 

F.2d 658, 661-62 (4th Cir. 1969) (relying on President Truman’s description in 

signing statement of proper legal standard to be used in Portal-to-Portal Act).

On the other side, it can be argued that the President simply cannot speak for 

Congress, which is an independent constitutional actor and which, moreover, is 

specifically vested with “[a]ll legislative Powers herein granted.” U.S. Const, art.

I, § 1, cl. 1. Congress makes legislative history in committee reports, floor debates 

and hearings, and nothing that the President says on the occasion of signing a bill 

can reinterpret that record: once an enrolled bill has been attested by the Speaker 

of the House and the President of the Senate and has been presented to the President, the legislative record is closed. See Field v. Clark, 143 U.S. 649, 672 (1892). 

A signing statement purporting to explain the intent of the legislation is, therefore, 

entitled at most to the limited consideration accorded to other kinds of postpassage legislative history, such as later floor statements, testimony or affidavits by 

legislators, or amicus briefs filed on behalf of members of Congress. See Regional

Rail Reorganization Act Cases, 419 U.S. 102, 132 (1974) (citation omitted) (“postpassage remarks of legislators, however explicit, cannot serve to change the legislative intent of Congress expressed before the act’s passage. Such statements

11 Significantly, the P resident's veto pow er is placed in Article I, thereby indicating that he has a share of 

the legislative pow er, rather than in Article II, w hich deals with the executive pow er See 1 W illiam C rosskey, P olitics an d the C onstitution 419 (1953)

136
The Legal Significance o f Presidential Signing Statements

‘represent only the personal views of these legislators.’”) (quoting National

Woodwork Manufacturers Ass'n v. NLRB, 386 U.S. 612, 639 n.34 (1967)).12 Finally, it is arguable that “by reinterpreting those parts of congressionally enacted 

legislation of which he disapproves, the President exercises unconstitutional lineitem veto power.” Garber & Wimmer, supra at 376; see also Constitutionality of

Line-Item Veto Proposal, 9 Op. O.L.C. 28, 30 (1985) (“under the system of checks 

and balances established by the Constitution, the President has the right to approve 

or reject a piece of legislation, but not to rewrite it or change the bargain struck by 

Congress in adopting a particular bill”).

Conclusion

Many Presidents have used signing statements to make substantive legal, constitutional or administrative pronouncements on the bill being signed. 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.

WALTER DELLINGER 

Assistant Attorney General

Office o f Legal Counsel

12 But see Seatrain Shipbuilding Corp v Shell Oil Co , 444 U.S 572, 596 (1980) (according “significant 

weight'* to post-passage statem ents, particularly ’‘when the precise intent o f the enacting C ongress is obscure”).

137
Opinions o f the Office o f Legal Counsel

APPENDIX

So far as we have been able to determine, the practice of using presidential 

signing statements to create legislative history for the use of the courts was uncommon — if indeed it existed at all — before the Reagan and Bush Presidencies. 

However, earlier Presidents did use signing statements to raise and address the 

legal or constitutional questions they believed were presented by the legislation 

they were signing. Examples of signing statements of this kind can be found as 

early as the Jackson and Tyler Administrations, and later Presidents, including 

Lincoln, Andrew Johnson, Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, Lyndon Johnson, Nixon, Ford and Carter, also engaged in the 

practice.

According to Louis Fisher of the Congressional Research Service,

Andrew Jackson sparked a controversy in 1830 when he signed a 

bill and simultaneously sent to Congress a message that restricted 

the reach of the statute. The House, which had recessed, was powerless to act on the message. A House report later interpreted his 

action as constituting, in effect, an item veto of one of the bill’s 

provisions. President Tyler continued the custom by advising the 

House in 1842 that after signing a bill, he had deposited with the 

Secretary of State “an exposition of my reasons for giving it my 

sanction.” He expressed misgivings about the constitutionality and 

policy of the entire act. A select committee of the House issued a 

spirited protest, claiming that the Constitution gave the President 

only three options upon receiving a bill: a signature, a veto, or a 

pocket veto. To sign a bill and add extraneous matter in a separate 

document could be regarded “in no other light than a defacement of 

the public records and archives.”

Louis Fisher, Constitutional Conflicts between Congress and the President 128 (3d 

rev. ed. 1991) (citations omitted).

President Lincoln stated that he was signing the Confiscation Bill on the understanding that the bill and the joint resolution explaining it were “substantially one.” 

He attached to his signing statement the draft veto message he had prepared before 

the joint resolution was adopted. In that draft, he raised various objections to the 

bill, some of which appear to be constitutionally-based. Thus, the draft singled out 

a provision that “assumes to confer discretionary powers upon the Executive;” but 

Lincoln stated that he would have “no hesitation to go as far in the direction indicated” even without such legislative authority. 8 M essages, supra at 3287; see also

Norman Small, Some Presidential Interpretations of the Presidency 183 (1932).

138
The Legal Significance o f Presidential Signing Statements

President Andrew Johnson signed but protested against an Army appropriations 

bill, claiming that one of its sections “in certain cases virtually deprives the President of his constitutional functions as Commander in Chief of the Army.” 8 Messages, supra at 3670.

In 1876, when signing a river and harbor appropriations bill that included 

“many appropriations . . . for works of purely private or local interest, in no sense 

national,” President Grant issued a signing statement saying that “[u]nder no circumstances will I allow expenditures upon works not clearly national.” 10 Messages, supra at 4331. On the same day, Grant sent the House another signing 

statement relating to an appropriation for consular and diplomatic services that had 

in part prescribed the closing of certain consular and diplomatic offices. Grant 

objected that “[i]n the literal sense of this direction it would be an invasion of the 

constitutional prerogatives and duty of the Executive,” and announced his intention 

of construing the section as intended merely “to fix a time at which the compensation of certain diplomatic and consular officers shall cease, and not to invade the 

constitutional rights of the Executive.” Id. at 4331-32.

President Theodore Roosevelt established several volunteer unpaid commissions to investigate certain factual situations and report back their findings to him. 

This practice “came to be denounced in Congress as ‘unconstitutional,’ and an 

amendment to the Sundry Civil Act of 1909 undertook to forbid the practice. Mr. 

Roosevelt signed the measure but proclaimed his intention of ignoring the restriction. “‘Congress,’ he argued, ‘cannot prevent the President from seeking advice.’” 

Edward Corwin, The President: Office and Powers 67 (1940) (citation omitted).

President Wilson signed a merchant marine bill in 1920, but determined not to 

enforce a provision he found unconstitutional. He stated that executing the provision ‘“ would amount to nothing less than the breach or violation’” of some thirtytwo treaties. See Fisher, supra at 130 (quoting 17 Messages at 8871-72).

In 1941, President Franklin Roosevelt confided an unpublished Presidential legal opinion objecting to the “two-House veto” provision in the Lend Lease bill to 

then-Attorney General Robert Jackson. Roosevelt found the provision “clearly 

unconstitutional,” but signed the bill as a matter of diplomatic and political necessity. Robert H. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353, 

1357 (1953). President Roosevelt also signed the Urgent Deficiency Appropriations Act of 1943, which included a section prohibiting the payment of a government salary or other compensation to certain named government employees 

deemed to be subversive. While signing the bill because it appropriated funds urgently needed to carry on the war, Roosevelt “‘plac[ed] on record my view that this 

provision is not only unwise and discriminatory, but unconstitutional.’” United

States v. Lovett, 328 U.S. 303, 313 (1946).

President Truman issued a statement on the occasion of signing the General 

Appropriation Act of 1951 in which he addressed a provision of the bill authorizing loans to Spain. Truman construed the provision in a manner that avoided what

139
Opinions o f ih e Office o f Legal Counsel

he thought would be an unconstitutional outcome, declaring that “I do not regard 

this provision as a directive, which would be unconstitutional, but instead as an 

authorization, in addition to the authority already in existence under which loans to 

Spain may be made.” Pub. Papers o f Harry S. Truman 616 (1950).

President Eisenhower sought to put a “saving” construction on a 1959 bill 

amending the Mutual Security Act. He stated that

I have signed this bill on the express premise that 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. Indeed, any other construction of these amendments 

would raise grave Constitutional questions under the historic Separation of Powers Doctrine.

Pub. Papers of Dwight D. Eisenhower 549 (1959). And in 1960, on the occasion 

of signing a bill providing for the admission of refugees, Eisenhower noted that 

“[t]he Attorney General has advised me that there is a serious question as to 

whether this [one-House veto] provision is constitutional,” but declared that “it 

would be better to defer a determination of the effect of such possible action [i.e., a 

legislative veto] until it is taken.” Pub. Papers of Dwight D. Eisenhower 579 

(1960-61).

On the occasion of signing the Omnibus Crime Control and Safe Streets Act of 

1968, President Lyndon Johnson criticized as “vague and ambiguous” certain provisions dealing with Federal rules of evidence in criminal cases, but stated that the 

Attorney General had advised him that those provisions could “be interpreted in 

harmony with the Constitution, and Federal practices in this field [e.g., the Federal 

Bureau of Investigation’s practice of warning suspects of their constitutional 

rights] will continue to conform to the Constitution.” 1 Pub. Papers of Lyndon B.

Johnson 727 (1968-69).

President Nixon signed a 1971 military authorization bill, but objected to a provision in it (the Mansfield Amendment, which set a final date for the withdrawal of 

U.S. Forces from Indochina) as being “without binding force or effect.” Pub. Papers o f Richard Nixon 1114 (1971).

President Ford, upon signing the Defense Appropriation, 1976, objected to a 

provision of that bill that restricted the Executive’s ability to obligate funds for 

certain purposes until it received approval from several Congressional committees. 

Ford stated that he could not “concur in this legislative encroachment,” and that 

consequently he would treat the restriction “as a complete nullity.” 1 Pub. Papers

o f Gerald R. Ford 242 (1976-77).

President Carter issued several signing statements, including statements on the 

FY 1980-81 Department of State Appropriations Act, the FY 1981 Department of

140
The Legal Significance o f P residential Signing Statem ents

Defense Authorization Act and the International Security and Development Cooperation Act of 1980. The first of these cases was a bill which, like the 1876 bill 

President Grant had objected to but signed, purported to mandate the closing of 

certain consular posts. Carter objected that Congress “cannot mandate the establishment of consular relations at a time and place unacceptable to the President,” 

and accordingly stated his determination to construe the provision as merely 

precatory. 2 Pub. Papers of Jimmy Carter 1434 (1979).

As noted above, the Reagan and Bush Administrations made frequent use of 

Presidential signing statements, not only to declare their understanding of the constitutional effect of the statutory language, but also to create evidence on which the 

courts could rely in construing such language. See, e.g., President’s Statement on 

Signing S. 1200 Into Law, 22 Weekly Comp. Pres. Doc. 1534, 1536 (Nov. 6, 

1986) (interpreting language of Immigration Reform and Control Act); President’s 

Statement on Signing S. 124 Into Law, 22 Weekly Comp. Pres. Doc. 831, 832 

(June 19, 1986) (interpreting language of Safe Drinking Water Act); Issues Raised

by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37 (1990) (provision of 

foreign relations authorization bill unconstitutionally infringed on President’s 

authority to conduct negotiations; if President chose to sign bill, he would be entitled not to enforce provision); Appointments to the Commission on the Bicentennial of the Constitution, 8 Op. O.L.C. 200, 201-02 (1984) (discussing Senator 

Hatch’s objections to constitutional claims made by President Reagan’s signing 

statement on bill).

141