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)

The Constitution, particularly the Presentment Clause, fails to address the topic of presidential signing statements, which are pronouncements that the President issues concurrent to or in connection with the President's signing of a bill. (3) Although Presidents initially used signing statements sparingly, the frequency of their use has increased throughout the twentieth century. Recently, presidential administrations began wielding these instruments in an attempt to regain some control from a post-Watergate Congress they viewed as having grown too powerful* These administrations have used the signing statements to influence administrative discretion within the executive branch when congressional hostility to the President's agenda has led to a polarized political environment. (4) During the Reagan Administration, the presidency began to utilize signing statements in an organized and strategic manner, culminating in an unprecedented surge in the number of legislative provisions that the current President has challenged in his signing statements. (5)

The George W. Bush Administration has regularly released signing statements of unusually broad scope, in which the President takes issue with the law and, in certain cases, disclaims it. (6) Yet, these deprecating messages are difficult to reconcile with the anomalous fact that, in the first seven years of his Administration, President Bush exercised his veto power only nine times. (7) If he opposes a law that Congress passes, it seems strange that he refuses to exercise his veto power. (8) Arguably, when the President refuses to enforce the law that he signs, he does not comply with his constitutional duty to take care that the laws are faithfully executed. (9) Presidential signing statements undermine the rule of law when the statements assert that the President will comply with or enforce the law at his discretion. Critics of signing statements maintain that by taking exception to particular provisions of a bill which he nonetheless signs, the President undermines the legislature's enactment of the law and its power to override a presidential veto. (10) By circumventing the constitutional decision-making structure and bypassing the veto, the President may also evade public scrutiny and political accountability. Finally, Bush Administration signing statements advance the notion of the President as the "'sole organ'" (11) of the administrative state, an assertion of authority made explicit in Executive Order 13,422, which President Bush issued in January 2007. (12) Thus, critics contend that the Bush Administration's reliance on signing statements suggests an underlying reluctance to engage in transparent governance and an aversion to negotiating within the established framework of checks and balances. (13)