The following post was co-authored by Megha Bhattacharya, outreach and communications policy research assistant at the R Street Institute.
Earlier this month, President Donald Trump signed into law the Countering America’s Adversaries Through Sanctions Act, which strengthened sanctions against Russia, North Korea and Iran. While some observers speculated Trump might veto the bill, he was faced with veto-proof majorities in both houses of Congress, which likely forced his hand.
Even though he ultimately signed the bill, Trump issued a signing statement—the second of his presidency—claiming that several portions of the law were unconstitutional infringements on his presidential power to conduct foreign affairs.
Presidents have issued signing statements for many reasons throughout history. They can be used to criticize discrete provisions in a law, clarify how the law’s text should be interpreted or even declare a portion of the law unconstitutional. Starting with President Ronald Reagan, signing statements enjoyed an uptick in popularity among modern presidents. But by the end of the George W. Bush presidency their usage had started to decline again. A new paper by Joel Sievert and Ian Ostrander examines this drop and attempts to uncover its cause.
As Sievert and Ostrander recount, presidents traditionally have used signing statements as mechanisms to assert presidential prerogatives, including assertions that a particular piece of legislation may raise constitutional concerns. While James Monroe was the first president to issue a signing statement, the practice became more consistent during the 20th century. Their use picked up substantially during the 1980s and continued through the 2000s, culminating in a series of smaller showdowns during the Bush administration.
After Bush issued a signing statement for the Department of Defense Appropriations Act for FY 2006—objecting to provisions Sen. John McCain, R-Ariz., had inserted into the bill that restricted the use of certain interrogation techniques on enemy combatants—Congress began to more formally criticize and fight back against the use of presidential signing statements. Specifically, Congress started to convene oversight hearings regarding the practice of signing statements and even introduced legislation to regulate the president’s ability to issue such statements.
Sievert and Ostrander note that it was around this time that the Bush administration began to curtail its use of signing statements. During the first six years of his presidency, Bush issued 149 signing statements, compared to just 16 over his last two years, a trend which (for the most part) continued into the Obama administration. The authors argue that this decline can be attributed to a simple cost-benefit framework: as Congress began to push back against presidents using signing statements, the costs of issuing the statements increased significantly. As a result, presidents began to decrease their reliance on signing statements and switch to other, less controversial tools to advance presidential prerogatives.
The authors point out that presidential tools are incredibly malleable and can evolve or die out over time. Scholars have suggested that presidents increasingly have relied instead on statements of administration policy (SAPs)—which are issued while a bill is moving through Congress, rather than once it reaches the president’s desk—to take the place of signing statements.
Given the malleability of presidential tools, it raises the question of whether the debate over formal signing statements is a distraction from larger issues. As noted, presidents issue signing statements for many reasons, such as to influence how a law’s text is interpreted or to impact how an agency implements a portion of a law. But presidents can advance these goals through other means, suggesting that presidential actions rather than signing statements are where the real focus should be. For example, presidents can use surrogates or speeches to air any objections to a particular law, and they can use tools like SAPs or even internal communications to agencies to influence how a law’s text is interpreted and implemented.
Of course, the most intense debates surrounding signing statements arise when presidents use them to lodge constitutional objections to portions of a law that they don’t otherwise want to veto in totality. It remains a controversial question whether presidents can merely decline to enforce parts or all of a law they view as unconstitutional. But even in these cases, signing statements themselves take a back seat to the president’s actual on-the-ground actions.
As the Congressional Research Service’s Matt Garvey has noted: “If an action taken by a President in fact contravenes legal or constitutional provisions, that illegality is not augmented or assuaged merely by the issuance of a signing statement.” In other words, signing statements themselves matter less than whether a president takes tangible steps not to enforce portions of a law he or she finds unconstitutional or undesirable. This was seen most recently in the Obama administration’s decision not to enforce certain parts of the Affordable Care Act during its implementation stage—an action taken without any signing statement indicating that the president would do so. Garvey continues:
It can be argued that the appropriate focus of congressional concern should center not on the issuance of signing statements themselves, but on the broad assertions of presidential authority forwarded by Presidents and the substantive actions taken to establish that authority. Accordingly, a robust oversight regime focusing on substantive executive action, as opposed to the vague and generalized assertions of authority typical of signing statements, might allow Congress in turn to more effectively assert its constitutional prerogatives and ensure compliance with its enactments.
While Congress might be best served to focus its ire on presidential actions, rather than statements, it is noteworthy to see the national legislature stand up to the executive branch in any realm. Sievert and Ostrander suggest that signing statements are “one of the most recent fronts” in the power balance between the legislative and executive branches, and their decline shows Congress can act effectively to curb executive power. As Sievert and Ostrander put it, the decline in signing statements in the wake of greater congressional pushback and oversight “demonstrates that executive power does not increase monotonically or proceed inevitably toward aggrandizement.”
Whether such aggrandizement continues apace will depend on Congress’ willingness to push back against other instances of executive overreach as vigorously as it has against signing statements.
Image by OPOLJA