Signing Statements: Virtues And Vices

President Bush, video still 2006/7/20
By CBS News legal analyst Andrew Cohen

What exactly is a "signing statement," and why do so many people suddenly care about them?

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.