Introduction: The Last Word? The Constitutional Implications of Presidential Signing Statements

It is not often in a republic more than 200 years old that a seemingly new constitutional topic emerges that proves worthy of widespread academic thought. Yet on February 3, 2007, legal and political scholars from around the nation converged on Williamsburg, Virginia, to participate in an unprecedented conference at the William & Mary School of Law: Last Word? The Constitutional Implications of Presidential Signing Statements. Never before had an entire academic symposium been devoted to this subject. Indeed, the time was not far gone when most Americans had never heard of a statement. But 2006 had witnessed an extraordinary national conversation about this tool of executive power, its exponential growth in the hands of recent Presidents, and its implications for the future ofthe Constitution's system of checks and balances. This exploding attention to a previously obscure device reached a peak at the William & Mary Bill of Rights Journal's annual scholarly symposium. By then, the had become a household term, and its basic outlines were generally understood. In short, a signing statement is an official legal document issued by the President on the day he or she signs a bill. Filed in the Federal Register, signing statements lay out the President's interpretation of new laws and instruct the executive branch to interpret the laws in the same fashion. The device becomes controversial when Presidents use it to declare that various sections of the bills that they have just signed are unconstitutional and so do not need to be enforced as Congress wrote them. Moreover, the laws targeted in this fashion have most often been constraints on the President's own power as head of the executive branch or Commander in Chief, so this claimed power to-sign-but-not-enforce boils down to a claimed power to-sign-but-disobey. Or, as the practice's defenders prefer to say, it is a power to instruct the executive branch to construe such a law in a manner that would avoid the constitutional conflict that the President claims would otherwise exist - such as by reinterpreting a mandatory provision into a merely advisory one, or otherwise to discover in the statute an unwritten exception for the President to exercise at his own discretion. Presidents have issued signing statements challenging laws dating back to the nineteenth century. But the practice was rare until the Reagan administration' s second term, when attorneys in the Meese Justice Department proposed issuing them more often as a way to expand presidential power over the law.1 Since the mid-1980s, Presidents of both parties have used signing statements to challenge provisions in bills much more frequently. And under the Bush-Cheney administration, the practice reached an unprecedented level of intensity. By the time of this symposium, according to data compiled by conference participant Dr. Christopher Kelley of the Miami University in Ohio, Bush had used signing statements to target more than 1,100 distinct sections of bills - nearly double the roughly 600 such laws challenged by all previous Presidents in American history combined.2 Moreover, unlike his immediate predecessors, Bush had also virtually abandoned his veto power, signing every bill that reached his desk during his first term even as he used signing statements to eviscerate them.3 Observers outside the executive branch were slow to recognize what was happening. With the notable exceptions of Kelley and Professor Phillip Cooper at Portland State University's Mark O. Hatfield School of Government, most political and legal scholars gave virtually no thought to signing statements prior to 2006.4 Nor did the media or Congress pay any attention to the signing statements the White House had quietly filed during the first five years of the Bush-Cheney presidency. But that neglect came to an abrupt end in January 2006 after Bush issued a signing statement asserting that the President, as Commander in Chief, could set aside the so-called McCain Torture Ban,5 a putatively loopholes-free ban on cruel, inhumane, and degrading treatment by interrogators questioning detainees in the war on terrorism. …