Signing Statements and Divided Government

A striking but largely unnoticed feature of the controversy spurred by George W. Bush's aggressive use of signing statements is that Republicans, with only a brief interruption, controlled both houses of Congress from 2000 until 2006.' The question of why a Republican President would use signing statements to slap down a Republican Congress did not meaningfully register in either a July 2006 American Bar Association (ABA) Task Force Report, a series of Boston Globe articles that won the Pulitzer Prize, or congressional hearings held by Republicans in June 2006 and Democrats in January 2007.2The subject of this controversy, instead, has been whether the President has a legal duty to enforce laws he thinks are unconstitutional and, relatedly, whether the President is improperly expanding his power by "quietly claim[ing] the authority to disobey more than [800] laws enacted since he took office."3 I do not doubt the appropriateness of journalists, academics, and lawmakers focusing their energies on the related questions of whether Presidents can disobey laws they sign and, even if they can, whether President Bush is nevertheless going too far in pushing his vision of presidential power.Those questions should be front and center in this conversation.At the same time, I think the question of how the President's use of signing statements might differ in periods of unified and divided government is worth examining.