The Historical Presidency: 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. …