The Last Word: Presidential Power and the Role of Signing Statements

The presidential bill signing statement is one of many devices that contemporary presidents have developed for use against a recalcitrant Congress, joining with the executive order, memoranda, proclamations, pocket vetoes, and primary unilateral policy devices, to name but a few (Barilleaux 1989; Cooper 2002; Mayer 2001; Spitzer 2006). In late 2005 and then in 2006, the signing statement moved from relative obscurity to cause celebre. The reason it became a public spectacle is multifaceted. First, in December 2005, President George W. Bush used the signing statement to renege on a deal he had made with Senator John McCain (R-AZ) to keep torture off the list of interrogation techniques as part of the global war on terrorism. Throughout the fall of 2005, the administration applied enormous political pressure to persuade Senator McCain to back away from his "no torture" position. When it failed, President Bush invited Senator McCain, along with Senator John Warner (R-VA), to a White House photo op and a formal signing ceremony, at which President Bush proclaimed, "[T]he Administration is committed to treating all detainees held by the United States in a manner consistent with our Constitution, laws, and treaty obligations, which reflect the values we hold dear" (Bush 2005a). However, in President Bush's signing statement to the bill, (1) he set off a public firestorm after he wrote, The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. (Bush 2005b) Also in December 2005, the Bush administration released numerous documents regarding Judge Samuel Alito's time in the Reagan administration's Justice Department. Alito, at the time preparing for his Supreme Court confirmation hearings, had worked in the Reagan Justice Department in the mid-1980s, in part to develop the signing statement as a useful device to protect the prerogatives of the presidency, as well as to advance policy preferences throughout the executive branch agencies (Alito 1986). And finally, in April 2006, Charlie Savage, a reporter for the Boston Globe, wrote an article claiming that President Bush had used the signing statement to challenge "more than 750 laws" since taking office, a number that exceeded all previous presidents combined (Savage 2006). What ensued were numerous editorials condemning the practice, along with congressional hearings, testimony, and legislation designed to blunt the effects of the signing statement and a chorus of critics who issued reports demanding that the practice stop. Yet despite all the recent attention, there has been little scholarly research tying the use of the signing statement to the larger picture of presidential power (Cooper 2002, 2005 are important exceptions). This essay investigates how the signing statement is used to influence the policy process when the normal methods break down, particularly in this modern period of divided government characterized by high levels of partisanship inside Congress and inside the electorate. The empirical analysis seeks to understand the factors that explain why the president uses signing statements on some laws and not others. In broader terms, the investigation of signing statements sheds light on how two distinct views of power--Neustadt's personal presidency and unilateralism--can be viewed as complementary, rather than competing approaches. The investigation utilizes a mixture of methods and evidence to assess the role of presidential signing statements in understanding presidential power. …