The Harbinger of the Unitary Executive? An Analysis of Presidential Signing Statements from Truman to Carter

In the 19th and early 20th centuries, presidents only infrequently commented on congressional bills when they signed them into law. Most proclamations that are now considered "signing statements" in the modern era were congratulatory. Anecdotal evidence suggests that presidential challenges to legislation in the early Republic were rare (Dellinger 1993; Fisher 1997, 132; Kelley 2002). The sea change in presidents' use of signing statements is thought to have occurred with the election of Ronald Reagan in 1980. Indeed, scholars of the modern presidency have focused primary attention on the controversies over signing statements that that began with Reagan and continued through the presidency of George W. Bush (Kelley and Marshall 2010). Challenges to provisions of bills through signing statements were part and parcel of the Reagan White House's strategy to revitalize and centralize presidential power. The administration regarded the restoration of executive prerogative as paramount to its mission, alleging a wholesale decline in presidential authority following Watergate and the Carter presidency (Hill and Williams 1990, 233; Montgomery 2002, 800-01; Reedy 1971). Signing statements provided a basis for presidential interpretation of "legislative history" to justify implementation--or nonimplementation--of select provisos. Moreover, the Reagan White House endeavored to institutionalize executive agencies' acceptance of such interpretations through signing statements, which the administration also hoped the courts would recognize (Garber and Wimmer 1987; Kelley 2007; Pfiffner 2009, 200). The practice of regular presidential challenges to bills, on constitutional or other grounds, and interpretations of legislative intent via signing statements continued apace into the presidencies of George H. W. Bush and William Clinton (Cooper 2002; Kelley 2003). Bush utilized a novel, if purportedly disingenuous strategy of convincing Republican copartisans in Congress to engage in colloquies in the debates of bills, which he later cited in signing statements to justify his interpretation of legislative history and bolster his objections (American Bar Association Task Force 2006, 11-12). With respect to Clinton, "While the policy aims of his Administration might have differed," Halstead (2007, 5-6) notes, his "conception of executive power revealed itself to be largely consonant with the philosophical underpinnings of the Reagan and Bush I Administrations." Clinton and his White House Office of Legal Counsel claimed that the president had the authority to refuse to enforce unconstitutional provisions and issued such statements on scores of provisions in bills ranging from appointment powers to foreign policy matters (Halstead 2007, 6; Krent 2008, 532). The firestorm over signing statements reached a zenith during the presidency of George W. Bush (Berry 2009; Birdsell 2007; Cooper 2005; Fisher 2007; Pfiffner 2008, 2009). Figure 1 shows that Bush did not issue more signing statements on an annual basis than his predecessors in the postwar era. Over his eight year term, Bush averaged about as many signing statements as Dwight Eisenhower from 1953 to 1960. However, Bush utilized signing statements more comprehensively than any past president to challenge legislation on constitutional grounds. He boldly asserted the right to disallow parts of bills rather than veto the entirety of the bill. He issued a total of 162 statements from 2001 to 2008, over 70% of which contained constitutional objections (Woolley and Peters n.d.). Among those 162 statements were more than 1,200 specific clauses with which Bush disagreed. For Bush, signing statements constituted a key component of the administration's articulation of the principle of the "unitary executive" or the concept of unfettered presidential authority over the executive branch (Skowronek 2009). Critics charged that Bush had arrogated an unconstitutional line-item veto, sparking rebukes from the American Bar Association, prompting congressional inquiries into the practice, and generating legislative proposals to curb the alleged abuse of this prerogative. …