Signing Statements: Virtues And Vices

By CBS News legal analyst Andrew Cohen

A signing statement is a written declaration composed by White House lawyers offering the executive branch's perspective (critics would call it "spin") on the legislation to which it is attached. As one Clinton Administration lawyer once put it: "Many Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create 'legislative history' remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes."

The reason so many people are talking about signing statements these days is that the Bush Administration has made a habit out of attaching them to legislation — sometimes in lieu of a presidential veto.

This White House, by most accounts, has already issued more signing statements (in the 750-800 range) than all previous administrations combined.

Perhaps the most controversial use of the signing statement came a few months ago when the President used one to back away from the spirit, if not the letter, of anti-torture legislation that had been the subject of great debate and much controversy in Congress.

Do signing statements take precedence over the legislation to which they are attached? If not, what's in it for the White House?

Signing statements, by law, should not take precedence over lawfully-enacted legislation. The reason that this White House has used them so much, truly making them an instrument of policy, is that Bush Administration officials believe that they both extend and preserve presidential power and authority. It's as if the President says to Congress with every signing statement: "You have passed this law, and I have signed it, but the White House does not necessarily agree with its purpose, language or scope. Therefore, we reserve the right to subsequently assert a legal position, or otherwise act, in a manner that is inconsistent with this new law."

That legal position has great attraction to this White House, especially as it otherwise asserts along many fronts that it must have great power and authority to wage the war on terrorism.

Is that why Congress has grown increasingly agitated with the use of signing statements? Is that why Sen. Arlen Specter, R-Pa., is threatening to pass legislation that would allow Congress to sue the White House to declare signing statements unconstitutional?

Exactly. More and more politicians are beginning to see signing statements as an end-run around the veto process, as a way for the President to effectively veto those parts of a law he doesn't accept without taking the political hit that a veto necessarily brings.

Also, some politicians contend, Congress can always override a veto — but there is no way, at least not yet, to formally veto a signing statement. That's where Sen. Specter's proposed legislation comes into play. He wants to be able to take the executive branch into court and get the judiciary to declare void whatever impact the signing statements are designed to have over the legislation they accompany.

Who would win that legal battle?

Clearly, signing statements in some form and "on appropriate occasions" (to steal again from a former White House official) are constitutional.

The issue going forward is whether the courts would have to defer to the contents of a signing statement if and when they contradicted the language contained in the law or the congressional intent behind the legislation. It is not at all clear to me, based upon the research that I have done, that by a signing statement alone, the President can order an executive branch official to refuse to help enforce the legislation. Such a move would immediately generate a lawsuit that the Administration likely would lose.

But couldn't the White House legitimately continue to include signing statements as a way of providing judges in future cases with the benefit (or burden) of the executive branch's legal perspective on legislation in the same way that judges often look to a law's history as it meandered through Congress?

I don't see why not. Again, it would depend upon how those "future" courts used those signing statements. This particular issue raises a lot of heat among legal scholars. For example, during the Clinton Administration, the use of signing statements as "presidential history" seemed to be frowned upon while other uses of signing statements, like those the current Administration seems to embrace, were deemed acceptable. The opposite may be true now. Look for that complex and somewhat contradictory history to get mentioned as this legal and political debate heats up.

What does the White House say in defense of its statements?

The White House and its allies in Congress say the uproar is overblown and that the signing statements aren't intended to disobey Congress or show disrespect for the law.

One senator, John Cornyn, R-Texas, has gone so far as to say that the signing statements simply express the president's opinions about the legislation he is signing.

Don't believe that for a second.

If the signing statements were legally meaningless — just the President offering his two cents worth — the White House wouldn't be spending all the time and energy it has in cranking them out, one after another, for six years.

By Andrew Cohen