The development this week on the use of presidential signing statements is welcome news. Presidential signing statements, official pronouncements issued by the President contemporaneously to the signing of a bill into law the White House, have been used as far back as 1830 by President Jackson when he raised objections to an appropriations bill. A history of the use of signing statements is laid out in detail in a September 2007 CRS Report entitled Presidential Signing Statements: Constitutional and Institutional Implications.
The extensive use of signing statements during the Bush Administration drew criticism that led to the American Bar Association voting unanimously to investigate whether President Bush exceeded his constitutional authority in reserving the right to ignore laws enacted during his term of office. See Recommendation by the American Bar Association, Task Force on Presidential Signing Statements and the Separation of Powers Doctrine in SARA, the BLS Library catalog.
This week’s Memorandum for the Heads of Executive Departments and Agencies on the Subject of Presidential Signing Statements by President Obama directs executive branch departments and agencies to seek the advice of the Attorney General before relying on signing statements issued prior to March 9, 2009.
The memo also describes legitimate uses of signing statements and sets out principles that the administration will adhere to in order to avoid abusive use of signing statements. Specifically, paragraph 3 of the memo states:
To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.
President Obama has not ended the practice of issuing signing statements as can be seen from his statement issued on signing H.R. 1, the American Recovery and Reinvestment Act of 2009 (Public Law 111-5). The statement is more of a rhetorical signing statement than one seeking to modify the meaning of the statute like those of the prior administration. A Jurist report refers to Congressional critics including Senate Judiciary Committee Chairman Patrick Leahy (D-VT) and ranking Republican member Arlen Specter (R-PA) who said that Bush’s signing statements impermissibly intruded upon Congress’s power to write and enact laws under Article I of the Constitution which vests legislative powers exclusively to the Congress.