Flooded by the lowest ebb: congressional responses to presidential signing statements and executive hostility to the operation of checks and balances.

ABSTRACT: Over the course of the last three decades, U.S. Presidents have experimented with the use of presidential signing statements--written documents issued contemporaneously with the signing of a law. Under the administration of President George W. Bush, the United States has witnessed a massive proliferation in the number of presidential signing-statement objections, including the reservation of the right to not enforce or not comply with the law. Debates over the constitutionality of signing statements led to the drafting of the Presidential Signing Statements Act of 2006, which would prohibit the judiciary from utilizing signing statements for statutory construction. The Presidential Signing Statements Act would grant Congress standing to seek a declaratory judgment against the President regarding a signing statement that purports to interpret the law. This Note argues that the Presidential Signing Statements Act does not deal effectively with the problem of signing statements. An examination of the statements demonstrates that they convey a message of an entrenched presidency that is antagonistic toward the operation of checks and balances. This controversial message is a greater danger than using the statements as alternative constructions of statutory law. By focusing on the possible judicial use of signing statements and the way the signing statements erode the Congress's power to make the law, the Presidential Signing Statements Act fails to address the more urgent problems that these statements pose: actual and perceived disruption to the rule of law, rejection of checks and balances, and obstruction of the legislature's oversight function and its need for information and reciprocity.

 
  I. INTRODUCTION 
 II. THE RISE OF THE UNITARY-EXECUTIVE MODE OF PRESIDENTIAL 
     SIGNING STATEMENTS 
     A. LAYING THE FOUNDATION FOR THE EXPANSIVE USE OF SIGNING 
        STATEMENTS DURING THE REAGAN ADMINISTRATION 
     B. SUBVERTING LEGISLATIVE INTENT DURING THE GEORGE H.W. 
        BUSH PRESIDENCY 
     C. THE DELLINGER MEMOS DURING THE CLINTON PRESIDENCY 
     D. SIGNING STATEMENTS AS INSTRUMENTS FOR THE UNITARY 
        EXECUTIVE IN THE GEORGE W. BUSH PRESIDENCY 
III. THE PRESIDENTIAL SIGNING STATEMENTS ACT OF 2006 
     A. THE CONSTITUTION LIMITS THE PRESIDENT'S ROLE IN 
        ENACTING LEGISLATION 
     B. THE ACT PROHIBITS THE JUDICIARY FROM USING PRESIDENTIAL 
        SIGNING STATEMENTS FOR STATUTORY CONSTRUCTION 
     C. THE ACT GRANTS CONGRESSIONAL STANDING TO OBTAIN 
        DECLARATORY JUDGMENT 
     D. CONGRESS HAS a RIGHT OF INTERVENTION 
 IV. AN ASSESSMENT OF THE PRESIDENTIAL SIGNING STATEMENTS ACT OF 2006 
     A. STRENGTHS 
     B. DEFICIENCIES AND REMAINING PROBLEMS 
        1. The Outlook for Congressional Suits Is Not Promising 
           Due to Justiciability Requirements 
        2. Categorical, Unqualified, and Demagogic Signing 
           Statements Make for Dubious Statutory Construction 
        3. Executive Noncompliance and the International 
           Nondelegation Doctrine 
        4. Noncompliance, Interdependence, Autonomy, and Reciprocity 
  V. IMPACT AND ALTERNATIVES 
  VI. CONCLUSION 

I. INTRODUCTION

"[E]mergency did not create power; it merely marked an occasion when power should be exercised." (1)

"In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." (2)