What's So Sinister about Presidential Signing Statements?

Abstract

Presidential signing statements, especially “constitutional” ones, have been characterized as line-item vetoes and a general abuse of power. But are signing statements so sinister? We suggest that the popular unilateral powers framework, as applied to signing statements, is inappropriate and that signing statements of all types function more like a dialogue with Congress. Using content analysis of all signing statements from 1977 to 2010, we demonstrate that signing statements routinely address general interbranch themes rather than the substance of a law. We thus provide a new perspective on presidential signing statements as a continuation of interbranch dialogue.

In 1830, Andrew Jackson signed into law an appropriations bill that, among other things, provided funds to construct a road from Detroit to Chicago. After signing the bill into law, Jackson wrote a special message to Congress indicating that he had signed the bill with the understanding that the authorized road was not to extend beyond the Michigan Territory (Jackson 1830). Jackson's actions outraged members of Congress and prompted the House of Representatives to issue a report rebuking Jackson's actions and declaring that his message in effect constituted a line item veto (Halstead 2007).

This episode marked one of the early instances in which a president formally issued a statement outlining an interpretation of a newly enacted law. Over time, this practice has been institutionalized in the form of presidential signing statements (Conley 2011), written comments delivered when a president signs a bill into law. These statements span the spectrum from innocuous rhetorical messages used to praise allies to pointed messages that offer the president's interpretation of certain statutory provisions. While signing statements have been used since the early 1800s, they did not receive consistent attention in political science until the George W. Bush administration. Since then both academic (Cooper 2005) and media (Savage 2006, 2007) sources have adopted a position consistent with the House of Representatives' 1830 report and likened signing statements to a line-item veto and a general abuse of presidential power. The American Bar Association (2006) went a step further and argued that signing statements pose a “serious threat to the rule of law” (20).

Signing statements exist in an ambiguous and murky world alongside the many modern presidential tools that are neither expressly mentioned in nor prohibited under the Constitution.1 This ambiguity has understandably led to the question of what precisely signing statements are and what presidents intend to accomplish through their issuance. The initial scholarly accounts have largely portrayed signing statements as the newest unilateral policy tool employed by recent presidents (Cooper 2005; Kelley and Marshall 2008, 2009, 2010; Pfiffner 2008). Within this framework, signing statements give presidents a last mover advantage (Kelley and Marshall 2008, 2009), which can circumvent congressional law-making authority by nullifying select statutory provisions. This power has been compared to a royal prerogative (May 1998).

But are signing statements so sinister? While some statements may be directed toward changing the outcome of a law, there has been little to no systematic evidence to demonstrate that signing statements alter the implementation of public laws (Halstead 2007, 2008a; Kepplinger 2007a, 2007b, 2008).2 Furthermore, an examination of the rhetorical content in signing statements indicates that many of these statements, even those raising constitutional questions, cannot be construed as intending any policy change. In these cases, signing statements appear to be institutionally oriented and do not appear to be used to make specific policy gains. Rather these statements are directed at reiterating the boundaries between Congress and the president. Additionally, statements of administration policy (SAP), which are issued during the legislative process and at times outline a president's constitutional concerns, have been found to precede many constitutional signing statements (Ainsworth et al. 2011; Rice 2010).

We suggest that the popular framework of unilateral action is an inappropriate perspective for understanding presidential signing statements. Instead, we posit that signing statements function as an opportunity for presidents to speak with Congress about specific provisions of a bill or larger interbranch issues. In doing so, the president is able to note concerns about policy, ambiguity, and the constitutionality of provisions, as well as offer praise for specific legislative accomplishments or congressional cooperation. In this sense, presidential signing statements may function more like a continuation of a dialogue between the two branches than a unilateral power (Korzi 2011). This theoretical approach has the advantage of using a single framework to discuss a broader range of presidential signing statements as well as linking these statements with other forms of presidential communication.

In support of our theoretical approach, we present the empirical results of a detailed content analysis of over 1,200 signing statements from the Carter to Obama administration. The content analysis demonstrates that the substance of most signing statements is far more benign than previously thought. Our analysis indicates that most constitutional objections raised in signing statements are related to larger issues of executive powers in relation to Congress rather than policy concerns. Furthermore, we find that in the majority of cases the president actually holds a favorable view of the legislation in question. We also provide evidence that the content of signing statements often appears earlier in the legislative process via SAPs, which suggests signing statements are neither unique nor necessarily unexpected.

Our findings suggest that we must recharacterize our understanding of presidential signing statements that raise constitutional concerns. Rather than viewing them only as a unilateral tool used to shape the policy implications of a single law, signing statements can be seen as facilitating a dialogue between the president and Congress regarding the breadth of each institution's powers.3 In this regard, signing statements offer an important window into the growth of presidential power because they provide a unique view of the president's conception of the institution's power vis-á-vis Congress.4 A dialogue framework also helps explain the empirical results showing the ebb and flow of signing statements as the relationship between the president and Congress changes over time (see Conley 2011).

The remainder of this article is laid out as follows: First, we review the basics of presidential signing statements including common typologies, their history, and finally their influence on policy. Next, we critically review the qualities of unilateral presidential action as a framework for understanding presidential signing statements. In contrast to the framework of unilateral power, we outline and defend a perspective of presidential signing statements as an instance of interbranch dialogue both theoretically and using content analysis of over 1,200 signing statements from the Carter to Obama administrations.

Presidential Signing Statements

Signing statements are often divided into types based on the content and arguments made within each statement. First, many signing statements are purely credit claiming or centered on delivering praise to those who helped enact a law. These signing statements are often referred to as “rhetorical.” Second, signing statements that make a constitutional argument or reinterpret the nature of a law are often referred to as “constitutional” statements. This basic typology, constitutional and rhetorical, is well developed in the work of Kelley and Marshall (2008, 2009) and can be found in other studies (Berry 2009; Ostrander and Sievert N.d; Whitford 2012).

While the typology is useful to researchers, it is important to note that these categories are somewhat artificial. They are not mutually exclusive as it is common to find elements of each type within a single signing statement. It is not the case that presidents decide whether to issue a constitutional versus a rhetorical signing statement; rather, presidents simply provide their reactions to legislation. Placing signing statements into categories, however, provides researchers with an easy way to describe the uses of signing statements over time.

A History of Signing Statements

Presidents have used signing statements since the early 1800s to editorialize and provide their interpretation of legislation (Halstead 2007, 3). While George W. Bush has been criticized for his use of constitutional signing statements, no epoch of presidential signing statements has been strictly rhetorical. With a few notable exceptions, however, signing statements were few in number and mostly rhetorical throughout the remainder of the nineteenth and early twentieth century.

The start of the modern presidency marked an important shift in the use and frequency of presidential signing statements. Halstead (2008a, 565) notes that Harry Truman began the first systematic use of signing statements with a relatively low number issued—about 16 per year. According to Conley (2011, 560), Truman used “critical signing statements to target his arch nemesis, the Republican Congress” on legislation pertaining to the budget. After Truman, presidents continued to issue a steady stream of signing statements with each president building upon the precedents set by prior administrations' use of signing statements (Conley 2011). The next big change came during the post-Watergate congressional resurgence (see Figure 1, first vertical line), with both Gerald Ford and Jimmy Carter resorting to using the signing statement to protect presidential authority (Kelley 2007; Kelley and Marshall 2008; Rudalevige 2005).

Figure 1. The Use of Presidential Signing Statements over Time.

While both Presidents Ford and Carter began issuing more signing statements, most scholars attributed the institutionalization of the signing statement to the Regan administration (Cooper 2005; Kelley and Marshall 2008). The institutionalization of signing statements is often traced back to the efforts of then Attorney General Edwin Meese III (Cooper 2005) and is documented in a 1986 memo by then Assistant Deputy Attorney General Samuel Alito, which argued for the inclusion of signing statements in the weekly compilation of presidential documents (Alito 1986). Alito also argued that these statements should be included in legislative histories so judges could take presidential interpretation of legislation into account. The Reagan presidency therefore marks the start of a concerted effort to institutionalize and legitimize the use of presidential signing statements (Garber and Wimmer 1987; Kelley and Marshall 2009, 2010).

The use of constitutional signing statements did not end or even slow after the Reagan administration. Both Presidents George H. W. Bush and Bill Clinton used and defended the constitutionality of signing statements. This consistency was due at least in part to continued pro-signing statement advice given by White House aides. Walter Dellinger, President Clinton's assistant attorney general, noted that legal counsels as far back as the Carter administration had argued for the constitutionality of signing statements raising constitutional questions (Dellinger 1993).

Despite this continued tradition, George W. Bush's use of signing statements elicited greater controversy than his predecessors. Though he issued far fewer signing statements relative to prior presidents, George W. Bush tended to deliver constitutional objections to a greater number of statutes within each statement than his predecessors (Ostrander and Sievert N.d). Given the scale and constitutional nature of some signing statements, scholarly works (Kelley and Marshall 2008) characterized signing statements as a potent presidential policy tool and media accounts (Savage 2006, 2007) described the issue from the perspective of the possible creation of a new imperial presidency.5

The most often cited example of George W. Bush's use (and abuse) of the presidential signing statement is the statement he issued on the 2006 fiscal year (FY) Department of Defense Appropriations bill.6 In this statement, President Bush issued constitutional objections to a number of different statutory provisions. The most notable objection, however, was the one targeting Title X in Division A, more commonly known as the McCain Amendment, which placed restrictions on interrogation methods that could be used on “enemy combatants” from the “Global War on Terrorism.” In his signing statement, President Bush (2005) indicated that

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief.

With this single sentence, President Bush is said to have circumvented the legislative process and undermined the McCain Amendment through what was in essence a line item veto.

The case is important for a number of reasons. First, it is one of the more frequently cited examples of how presidents can and do use signing statements to unilaterally change policy. Second, the McCain Amendment was in essence a political defeat for President Bush as the bill was passed with a veto-proof majority. It has been argued that this case provides clear evidence of how presidents could use different tools at their disposal to “turn a policy loss into a win” (Kelley and Marshall 2008, 509). The McCain Amendment, perhaps more than any other case, has provided the basis for the media and scholarly backlash against the use of presidential signing statements.

The saliency of signing statements continued into the 2008 presidential campaign (Abramowitz 2008) where Obama pledged to limit the use of signing statements. Signing statements continued to receive attention during President Obama's first hundred days in office due to his issuance of two signing statements during this time (Savage 2009; Shear 2009).7 In response to Obama's two signing statements, Democratic leaders in Congress issued a letter to Obama urging him to stop the practice (Nather 2009). Even with the controversy surrounding their use, President Obama has continued to issue signing statements challenging the constitutionality of certain provisions within legislation. In short, the controversy over the use of presidential signing statements did not end with the George W. Bush administration.

Presidential signing statements are, however, in declining use. When looking at the rate of signing statements issued over time, there is a steep drop off near the end of the George W. Bush administration. There have also been fewer signing statements issued in the Obama administration than other recent presidents. The decline in presidential signing statements may be due to their increased public saliency following congressional hearings8 and media attention related to a series of articles written by Charles Savage.9 The second vertical line in Figure 1 denotes the publication of the Savage article as well as congressional hearings. It appears to correspond to a more limited use of constitutional signing statements. The Obama administration has also experienced a decline in the use of signing statements that roughly follows the rebuke from congressional Democrats, though he may simply be keeping to his campaign promise to limit the use of signing statements.

The Effect of Signing Statements

Signing statements, even constitutional ones, do not change the law as written. The argument that signing statements function like line-item vetoes “arguably misapprehends the nature of signing statements as presidential instruments” (Halstead 2008b, 3). Unlike a line item veto, the objections or constitutional questions raised in a signing statement do not change the text of the statute in question (Bradley and Posner 2006). Instead, any law receiving a presidential signing statement “retains its legal effect and character, irrespective of any pronouncements made in a signing statement, and it remains available for interpretation and application by the courts … and monitoring by Congress” (Halstead 2008b, 3).

Reexamining President George W. Bush's signing statement concerning the McCain Amendment can elucidate the full force of Halstead's observation. Since the president's signing statement did not actually change the statute, it retains the full force of law and continues to do so until it is either amended by Congress or found to be unconstitutional by the federal courts. As such, any action contrary to the statute is in violation of the U.S. Code, and agencies implementing this provision are legally bound by it. While it is beyond the scope of this article to make an assessment about whether or how this would inform bureaucratic compliance, it is not a trivial consideration, particularly for such a high-profile and prominent statutory provision.10

Implementation of the Sarbanes-Oxley Act of 2002 does, however, provide some anecdotal evidence of what happens when bureaucratic agents follow a president's interpretation rather than congressional intent. The law related to whistle-blower protections for information or testimony given to members of Congress.11 Conflict between the president's interpretation and congressional intent came to light when Labor Department Solicitor Eugene Scalia filed an amicus brief with a Labor Department administrative review board for a case in which an assistant U.S. attorney had reported his concerns to Rep. Dennis Kucinich in private and not as part of congressional testimony. Scalia argued that the U.S. attorney should not be protected under Sarbanes-Oxley because only “contacts with a ‘duly authorized’ investigative committee are protected, Scalia wrote, pointing to President Bush's interpretation of a new corporate accountability law that deals with whistle-blower disclosures to Congress” (Lee 2002).

This interpretation drew a sharp rebuke from Senators Patrick J. Leahy and Charles Grassely, authors of the legislation, who said the interpretation directly contradicted congressional intent.12 The Labor Department ultimately reversed its position and brought its position on the law into compliance with Leahy and Grassely's stated intent (Lee 2003). In short, the attempted noncompliance in this case acted as the proverbial fire alarm (McCubbins and Schwartz 1984) that alerted Congress to a need for increased oversight.

Despite some anecdotal evidence, no study to date has been able to demonstrate a clear, systematic, and causal link between signing statements and the implementation of laws as carried out by executive agencies. The Government Accountability Office (Kepplinger 2007a, 2007b) has provided the most comprehensive reports concerning the bureaucratic implementation of laws on which the president has issued a constitutional signing statement.13 These reports examined how multiple agencies executed provisions to which President George W. Bush had raised constitutional objections.14 The first report (Kepplinger 2007a) examined 19 provisions in the FY 2006 Appropriations Act and found that 10 provisions were implemented as written, six were not, and three were never triggered and thus there was no agency action.

The six cases of noncompliance have been cited as evidence that signing statements independently influence bureaucratic implementation (Evans 2011, 230-31; Kelley and Marshall 2008, 255; 2009, 527). A close examination of these cases, however, does not point to the signing statement as the definitive cause of the noncompliance. In three of the six cases, noncompliance was the result of agencies failing to comply with a legislative veto, which were found unconstitutional in INS v. Chadha (1983). In two of the three cases, however, the agencies ultimately notified the relevant congressional committees of their actions but did not seek approval prior to initiating action. Ultimately, Kepplinger (2007a) concluded that “[a]lthough we found the agencies did not execute provisions as enacted, we cannot conclude that agency noncompliance was the result of the President's signing statement” (9, emphasis added). The second Government Accountability Office (GAO) report (Kepplinger 2007b) reached similar conclusions.

While the GAO reports are not conclusive evidence,15 no empirical studies have demonstrated that presidential signing statements alone alter the implementation of the law. Anecdotal evidence fails to prove that the signing statement itself, and not preexisting presidential authority, is a causal mechanism for any change in a law's implementation. It may simply be the case that a signing statement's effect is as a message of disagreement. As Fisher (2007, 209) notes, we must look at what signing statements “do” and not just what they “say” as these statements “may be pure bluster and represent some sort of theoretical, impractical protest created by imaginative attorneys.” While disagreement may foreshadow noncompliance, the GAO reports suggest that this possibility is not always, or even often, realized. The actual effect of signing statements is therefore in doubt.

Signing Statements as Unilateral Presidential Power

The recent study of presidential power has focused heavily on the argument that presidents can influence public policy through unilateral executive action (Howell 2003; Moe and Howell 1999a, 1999b). In this framework, presidents use their formal powers to “move policy” independent of the other branches. The most studied example of this kind of power is the president's use of executive orders (Deering and Maltzman 1999; Howell 2003; Mayer 2001; Moe and Howell 1999a, 1999b), but presidential scholars have also examined recess appointments (Black et al. 2007, 2011) and presidential proclamations (Rottinghaus and Maier, 2007) as additional tools for executive unilateral action.

Much of the initial research on presidential signing statements has used the framework of unilateral executive action to explain the issuance of signing statements (Cooper 2005; Kelley and Marshall 2008, 2009; Pfiffner 2008). For example, Kelley and Marshall (2008) suggested that signing statements give presidents a “last mover advantage” when dealing with Congress. A follow up study (Kelley and Marshall 2009) suggested that signing statements are used in conjunction with veto bargaining. Under this framework, the true advantage of the signing statement is the ability to change the interpretation of a law after Congress has passed it. The policy change will be successful “[a]s long as the president does not overplay his hand in making changes with the signing statement” (Kelley and Marshall 2009, 518).16 In this perspective, signing statements function as a quasi–line-item veto that allows the president to selectively circumvent congressional law-making authority.

Presidential signing statements do have some attributes that make them appear unilateral. The decision to issue a signing statement is solely under the purview of the executive branch with no need to consult or gain permission from Congress or the judiciary. When viewed from the unilateral perspective, signing statements take on a character similar to executive orders or vetoes (Cooper 2005; Fisher 1997) and have be characterized in the tradition of Howell (2003) as examples of presidential power without persuasion. This approach, however, contains many theoretical and empirical inconsistencies.

Theoretical Inconsistencies

There are a number of theoretical inconsistencies with viewing presidential signing statements within the framework of unilateral presidential power. Unilateral presidential powers, as constructed in Howell (2003),17 are defined by two key components. First, unilateral powers allow the president to “move policy first and thereby place upon Congress and the courts the burden of revising a new political landscape” (14). Second, unilateral powers allow the president to alter the status quo independent of Congress or other political actors. In doing so, the president does not “need to rally majorities, compromise with adversaries, or wait for some interest group to bring a case to court” (15). Unilateral powers are distinct in large part because they are active and not conditioned on prior congressional action.

The conception of signing statements as unilateral action violates these criteria in several ways. First, a president does not “move policy” with a signing statement; rather they offer a counter interpretation of a law, which is fundamentally different from making law. Carey and Shugart's (1998, 9) comparative study of executives makes a clear distinction between the ability of a president to make law (i.e., through decree) versus the ability to provide an ex post interpretation. Second, unlike presidential powers such as executive orders, signing statements do not have the force of law, and the law itself remains in place as written, which suggests that presidents would need to persuade bureaucrats into complying with this interpretation. Lastly, presidents do not act alone as they must wait for Congress to pass a law before they can use a signing statement. This dependency is similar to waiting for a court case in order to challenge an existing law or practice in federal court.

Furthermore, the cornerstone of the unilateralist perspective, as applied to signing statements, suggests that presidents gain policy concessions on the law at hand. This ignores the fact that presidential-legislative interactions are more akin to a repeated game than a simple one-shot interaction. Interpretations of signing statements as a presidential direct action (Cooper 2005, 531) treat this interaction as a singular event ending with the president's signature. Congress, however, may issue future amendments or retaliate through noncooperation in future interactions. As noted by Axelrod (1984), defection in a repeated game is discouraged as it can reduce future cooperation and ultimately make both sides worse off than if they had cooperated fully. In the same way, a signing statement could spell a presidential win for one day but reduce interbranch cooperation for the rest of a congressional session. This suggests that, at best, the president could only use a signing statement to move the law within the boundary of congressional indifference (Kelley and Marshall 2009).18

Empirical Inconsistencies

The unilateralist perspective suggests that presidents use signing statements to gain policy concessions at the end of the legislative process, but this is not the case empirically. Most constitutional signing statements are concerned not with the substance of a law at hand, but rather the broader implications that a law has on presidential-congressional relations. Prior research has found signing statements to be related to the inclusion of legislative vetoes (Berry 2009) and to infringements upon traditional presidential powers (Evans 2011). As noted by Halstead (2008b),

Given the largely unsubstantive nature of the objections that have been raised in signing statements … it does not appear that presidents are using these instruments to formally negate provisions of law, but are instead employing them in an attempt to leverage power and control from Congress by seeking to establish these expansive claims of executive authority as a constitutional norm. (8)

In this sense, presidential signing statements are not routinely about policy or negating provisions, but rather about the balance of power between the branches.

In sum, presidential signing statements are not a good example of unilateral presidential action. They do not change the text of a law and thus are not akin to a line-item veto. Furthermore, signing statements have not yet been found to change the implementation of laws via the bureaucracies. Given these shortcomings, the unilateral perspective may not be the most profitable view of presidential signing statements.

Signing Statements and Interbranch Dialogue

At its most basic, a presidential signing statement is simply a message from the president about a law. While this message may indicate a willingness to not comply with a law as written, it is important to differentiate between the message and the act of noncompliance. The occurrence of noncompliance after the issuance of a signing statement does not mean the noncompliance occurred because of it. If the president truly did not want to comply with a law, the actual signing statement itself would not be necessary. As Halstead (2008b, 8) notes in his congressional testimony, any potential restriction of signing statements themselves would not “necessarily result in any change in a president's conception and assertion of executive authority.” The actual mechanism leading to noncompliance, should it occur, is likely to be some other form of preexistent presidential powers.19 The probability of noncompliance would therefore be dependent upon the president's willingness to use these tools to protect or advance his or her notion of executive power. Blaming the signing statement for noncompliance is thus akin to blaming the messenger for the content of a message.

We build upon the work of Korzi (2011) and develop an alternative framework that views presidential signing statements under the rubric of an interbranch dialogue. By interbranch dialogue, we mean that presidents often use these statements as a means of addressing concerns, policy or constitutional, noting agreement or disagreement, and in general communicating with Congress using a bill-specific message. For constitutional statements, this dialogue is used for affirming, or reaffirming, a president's interpretation of where the boundaries are between the branches. Constitutional questions are often not black and white, and the task of implementing law is sufficiently complex to foster disagreement and necessitate dialogue. In this way, signing statements serve as an all-purpose vehicle for transmitting bill-specific messages to Congress (i.e., rhetorical or political statements) and discussing larger issues of presidential-congressional relations (i.e., constitutional statements).

The dialogue framework contrasts sharply with a unilateral and policy-oriented view of signing statements. Whereas the unilateral approach tends to view constitutional signing statements as a mechanism for changing the implementation of a law, under the dialogue framework, a constitutional statement is at most a message of disagreement, and any act of noncompliance in the future is neither justified nor empowered by the signing statement itself. Furthermore, the dialogue framework suggests that constitutional signing statements would not be used to make specific policy gains (such as eliminating offending statutes), but rather to raise broader concerns about the powers of the branches relative to one another. In this sense, the conflict addressed in constitutional signing statements should transcend the law or policy issue at hand by focusing on larger principles that are likely to arise again in future interactions between presidents and Congress. While signing statements may not allow presidents to move policy, they are far from irrelevant and present ample research opportunities for political scientists.

The Content of Signing Statements

The content of presidential signing statements tends to support the theory that these messages serve to create a dialogue rather than change policy. As noted by Halstead (2008b) in his congressional testimony, many constitutional signing statements are not policy-oriented; rather they raise objections about larger aspects of presidential-legislative relationships and not specific policy differences. For example, Berry (2009) finds evidence that signing statements are used in response to legislative vetoes. Similarly, Ostrander and Sievert N.d find that a “president is more likely to issue a constitutional signing statement in policy areas that encompass traditional presidential spheres of influence” (2). In this way, presidents are actively engaged in protecting their larger interests, rather than trying to change the enforcement of a single law. This suggests a dialogue that spans beyond the individual bill.

While constitutional signing statements sound ominous and abusive, the reality is often mundane and innocuous. For example, on October 27, 1992, George H. W. Bush delivered this signing statement:

Today I am signing into law S. 1664, which establishes the Keweenaw National Historical Park. The Act also establishes the Keweenaw National Historical Park Advisory Commission, most of the Members of which are appointed by the Secretary of the Interior from among the nominees submitted by various State and local officials. Because most of the Members are effectively selected by various State and local government officials, and thus are not appointed in conformity with the Appointments Clause of the Constitution, Article II, section 2, clause 2, I sign this bill on the understanding that the Commission will serve only in an advisory capacity and will not exercise executive authority. (Bush 1992)

Though this statement was clearly constitutional in nature, and though it reinterpreted a law passed by Congress, it seems unlikely that its goal was to sidestep Congress in order to realize policy gains after the law was passed. This statement conveys no sense of real disagreement on the policy at hand, and it cannot be explained under the framework of unilateral presidential powers. Furthermore, this statement seems to be more defensive in nature, rather than an instance of presidential self-aggrandizement. These more mundane constitutional statements, and there are many, can be best explained and understood as a part of a larger dialogue that supersedes individual laws.

By coding the internal content of presidential signing statements, we can provide a larger picture of what signing statements were used for over time. Using the online database from the American Presidency Project (Woolley and Peters 2011), we code each signing statement from the Carter to the Obama administrations by type, tone, number of objections (i.e., sections mentioned in a signing statement), and type of objection in order to create a comprehensive signing statements data set. We choose to begin with the Carter administration because it was the first full post-Watergate presidency, after which presidents began using signing statements to defend their core powers. Under these parameters, we analyzed 1,262 signing statements from 1977 to 2010.

The number of constitutional objections listed in presidential signing statements has risen through time, but most of these objections fit within just a handful of broad categories. In particular, presidents tend to be concerned with: legislative encroachment on executive authority (e.g., legislative vetoes), presidential appointment powers, and foreign policy powers20. More rarely, a president will make an objection that a law infringes upon the courts or that it may contravene the constitution in some other way. In each instance, disagreements are tied to constitutional objections and not the substance of the law's policy ramifications. Table 1 shows the proportion of constitutional signing statements for each president that contain these broad objections.

Table 1. Percent of Constitutional Signing Statements with Given Objections

Objection Type	Carter	Reagan	Bush I	Clinton	Bush II	Obama
^a INS v Chadha was not decided until 1983. The data used for this row include data from 1983 to 2010.
Interpretation	23.52	18.28	18.70	32.58	65.15	14.28
Intrusion	64.71	44.09	41.46	22.47	34.84	57.14
Appointment	5.88	34.41	28.46	24.84	17.42	42.86
Foreign Affairs	14.71	11.83	28.46	10.90	47.73	42.85
Chadha	—	16.07a	10.57	13.33	27.64	0.00
Total	34	93	123	89	132	7

The content of signing statements does change over time depending on contemporary political context. Conley (2011) notes that the use and content of signing statements has evolved over time in response to changes in Congress. For example, during times of war where Congress may be more likely to pass legislation related to foreign policy and the conduct of war, presidents more regularly issued constitutional signing statements with objections related to foreign policy powers. In this way, the content and character of laws passed by Congress is likely to differ given political contexts, and these differences will also be reflected in the character of objections within presidential signing statements. Differing political contexts helps explain some of the different uses of signing statements demonstrated in Table 1.

One notable difference between presidents' use of signing statements is George W. Bush's tendency to issue a far greater proportion of constitutional signing statements that interpret or construe the meaning of a law. Such differences have been used to suggest that Bush used signing statements abusively and that such activity is indicative of a new “imperial” presidency (Savage 2006, 2007). While it is clear that Bush used statements differently, it is unclear whether he was more successful. Regardless of the controversial nature of interpreting legislation, the fact that Bush claimed greater powers does not imply that he received them. The difference could be a result of the fact that the George W. Bush administration frequently used signing statements as a forum for advancing the unitary executive theory of presidential power. This stylistic difference could explain the increased tendency to interpret legislation in constitutional statements.

The controversy over constitutional signing statements—namely, the idea that such statements shift policy after enactment—suggests policy disagreement between the president and Congress. An examination of the “tone,” or presidential disposition toward a piece of legislation, presents a more nuanced story. It is often the case that the president holds a favorable disposition toward the legislation on which a constitutional signing statement has been issued. In order to document this in a systematic manner, we coded the “tone” of each signing statement as either positive or neutral/negative (see Appendix A).21 The “tone” can often be discerned from the first few paragraphs of the signing statement, in which a president typically either expresses pleasure upon signing the bill into law or outlines some lingering misgivings. We use this tone as an indication for whether presidents agreed with the policy substance of a law.

Since the Carter administration, constitutional signing statements have a positive tone about 51% of the time while rhetorical statements are even more favorable with about 82% being positive in tone. The nonpositive statements may be either negative or neutral in character so the rates for negativity may be lower than these percentages would initially suggest. Figure 2 shows the proportion of rhetorical and constitutional signing statements that conveyed a positive tone. While there has been a notable change over time, this may simply be a reflection of presidents issuing proportionally fewer rhetorical statements or stylistic differences between presidents. For example, President George W. Bush's constitutional statements tended to summarize with little praise or indication of feelings. Regardless, a substantial proportion of constitutional statements are positive in tone, which indicates that such statements may be less adversarial than previously thought.

Figure 2. Percent of Statements with Positive Tone 1977-2010.

The content of many presidential signing statements suggests that presidents are attempting to persuade audiences. Signing statements provide a vehicle from which the president can advance alternative accounts of presidential authority or reiterate the borders shared with Congress. The hope of a president may thus be that the weight of many signing statements may add up to an accepted version of a stronger presidency (Fisher 2007). Even in the case where the goal of such a move is increased power, the actual vehicle that achieves these ends is persuasion via an interbranch dialogue. Rhetorical and political statements are often explicitly persuasive in nature with many instances of presidents asking Congress for additional legislation or promoting future policy endeavors. In this way, all signing statement types can be found to contain elements of persuasion or bargaining.

Statements of Administration Policy

Signing statements are not alone in terms of presidential messages aimed at or provided to Congress. In particular, a SAP is often used to convey exactly the same information as presidential signing statements with the key difference being that SAPs are used during the legislative process, and signing statements come after (Rice 2010). Disagreements mentioned first in SAPs are often mentioned again in signing statements. As such, researchers (see especially Ainsworth et al. 2011) have begun analyzing both signing statements and SAPs as tools for objecting to congressional measures. Because presidential signing statements have become controversial, there has been some suggestion that presidents may shift their energies toward SAPs as an alternative route to raising objections (Korzi 2011; Rice 2010, 704).

Many statements of administration policy read like presidential signing statements with similar language and objections raised. A SAP from June 16, 2005, on H.R. 2863 reads:

Provisions of the bill concerning the reporting of military activities to Congress, including sections 8007, 8011, 8054, 8085, and 9005, should be revised, and will be construed, in a manner consistent with the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties. (U.S. Office of Management and Budget 2005)

As in the case of constitutional signing statements, President Bush cited several provisions that may infringe upon the president's core powers. Furthermore, there is even an explicit statement that these provisions will be “construed” or reinterpreted by the president in a manner to be consistent with the Constitution. Many SAPs also include rhetorical statements that praise or object to pieces of a proposed law, and thus they seem to perform to the same tasks as signing statements. The relationship between SAPs and signing statements may be that the later reemphasizes points brought up earlier in the legislative process, and as such they are a part of the same dialogue for a given law.

While the example above provides anecdotal evidence of the relationship between SAPs and signing statements, we conducted a more systematic examination of this relationship. The American Presidency Project has a digital archive of all SAPs from 1997 to present, from which we isolated the population of public laws on which presidents had issued a SAP. This data was then merged into a larger data set of all public laws from the 105th to the 111th Congresses, which included data on which public laws received a signing statement. From this final data set, we were able to create a contingency table (see Table 2) in which we classified all public laws from the 105th to the 111th Congresses based on whether or not the president issued a SAP and whether or not that law received a signing statement.

Table 2. Test of Association between SAPs and Signing Statements

	Rhetorical	Constitutional	No Statement
χ^2 (df)        642.26 (2) [p-value]        [0.000]
SAP	84	101	165
No SAP	94	96	2633
Total	178	197	2798

There are several notable points that can be taken away from the results in Table 2. First, on a clear majority of the 350 public laws for which a president issued a SAP there was an adjoining signing statement. Second, the Pearson χ² can be used to test whether there is an association between two categorical variables (Olivella 2011). The null hypothesis for the Pearson χ² is that the row and column variables are independent (i.e., do not have a statistical association). In this case, rejecting the null hypothesis provides evidence that SAPs and presidential signing statements are statistically associated with each other.

While there is a statistical association between SAPs and signing statements, there are a sizable number of cases for which the president did not issue a SAP prior to issuing a signing statement (Rice 2010). In order to address this issue, we examined how the relationship between SAPs and signing statements changes based on the “severity” (i.e., number of sections mentioned) of the constitutional statement. We first used an ordinal scale of severity to classify all constitutional signing statements from the 105th to the 111th Congresses into one of five groups.22 We then calculated the proportion of signing statements in each group for which the president did or did not issue a SAP. We found that as the severity of the statement increases, so too does the likelihood that the president issues a SAP prior to the signing statement (see Figure 3). This suggests that constitutional signing statements without an accompanying SAP are likely to be relatively simple statements with few objections.

Figure 3. Proportion of Constitutional Statements with SAPs by Severity.

The use of SAPs as a vehicle for discussing constitutional issues is important for understanding presidential signing statements. First, the fact that SAPs often accompany signing statements with multiple objections indicates that it is quite rare for a president to raise questions about large portions of bill without having already addressed some or all of these issues earlier in the legislative process. Second, issuing SAPs suggests that presidents willingly give up the possibility of a last mover advantage, which is a far different story from the idea of presidents changing the interpretation of a law after it has been passed. Third, at the very least, the presence of SAPs suggests that signing statements are not unique in terms of their content. As such, these statements may be part of a larger strategy that encompasses other forms of presidential communications. Taken together, these implications suggest that signing statements and SAPs are a part of a larger interbranch dialogue.

Discussion and Conclusion

Presidential signing statements may, at times, seem abusive and are certainly used with an eye toward increasing executive power. The effects of signing statements, however, are often quite limited as they do not actually change the law and do not appear to be powerful enough to consistently persuade bureaucrats. Furthermore, a close look at the content of presidential signing statements suggests that their constitutional claims are not used for specific policy gains, but rather they fall into broad categories of interbranch concerns. Many constitutional signing statements are in fact routine and innocuous, and a majority of these statements contain a positive view of the policy proposal at hand. The dominant framework of unilateral presidential power, which has typically been used to explain the issuance of signing statements, may, at best, apply to a tiny fraction of these statements.

While it is unclear whether presidential signing statements move policy, recent media attention and congressional hearings support the idea that they can spark interbranch dialogue. Like Korzi (2011), we believe that signing statements are far closer to a dialogue than to line-item vetoes. This new framework is supported by both theoretical concerns as well as empirical findings. First, we show that the unilateral approach to understanding signing statements is plagued by theoretical inconsistencies that reduce the value of the framework for understanding the majority of presidential signing statements. Secondly, we show that constitutional signing statements are often positive in tone rather than being adversarial in nature. Finally, we show that both types of signing statements are often linked to other forms of presidential communication, namely, SAPs. Together, these findings demonstrate the possibility, as well as the utility, of understanding presidential signing statements under a dialogue framework.

Prior characterizations of presidential signing statements as unconstitutional usurpations of congressional authority also do not allow for much room to discuss the merits that this device may have in a thriving democracy. When viewed as a part of an ongoing interbranch dialogue, however, signing statements may prove beneficial. First, signing statements are public and entirely transparent. In this way, signing statements are to be preferred to resisting laws in silence. Second, if the president has warned Congress ahead of time in a corresponding SAP, then a presidential signing statement gains “greater credibility” (Fisher 2007, 193). Because of this transparency Congress may in fact profit from having the president point out vague or confusing language such that additional laws or oversight may be used to compensate (Ainsworth Harward, and Moffett N.d). In this way, a dialogue between the branches may allow for better communication of interests and intents such that a more fruitful and cooperative relationship emerges.

For researchers, the dialogue framework has several advantages over prior conceptions of presidential signing statements. Most importantly, it applies to all types of statements equally and across all time periods. While separate categorizations of signing statements (e.g., rhetorical or constitutional) may still be useful, it is no longer the case that a majority of signing statements fall outside the framework used to understand them. The dialogue framework also brings signing statements closer in our understanding to similar, and related, forms of presidential communication, such as SAPs, and further away from dissimilar and more unilateral powers, such as executive orders. In this way, researchers may more easily spot and understand patterns of presidential signing statements used in conjunction with other tools. Understanding presidential signing statements as a dialogue thus allows researchers to capture the historical ebbs and flows of interbranch conflict, and as such their analysis may help to estimate where this relationship is headed.

Footnotes

1. 1

   Halstead (2007) points out that the president is not alone in creating institutional powers that are not expressly mentioned in nor prohibit under the Constitution. In the same way that “there is no explicit constitutional provision authorizing the long-accepted power of Congress to engage in oversight, there is likewise no explicit provision authorizing the President to issue a signing statement accompanying the signing of a bill into law” (564).

2. 2

   The argument offered in this article is not that signing statements are never intended to influence policy outcomes but that policy is not the proximate motivation behind most if not all cases.

3. 3

   Our use of the term dialogue is motivated in part by executive branch memoranda that discuss signing statements as a type of interbranch dialogue. An Office of Legal Counsel memo from the G. W. Bush administration argued that signing statements could function as part of a larger “constitutional dialogue between the Branches” (Elwood 2007) and a memo from the Obama administration also suggested that signing statements can “promote a healthy dialogue between the executive branch and the Congress” (Obama 2009).

4. 4

   This view is important because presidential powers are rarely specified in the Constitution and derive much of their force from the resulting ambiguity. Mayer (2001) notes that this ambiguity has contributed to the dynamic evolution of presidential powers and that this evolution can be driven in part by “precedents established by individual chief executives” (16). Thus, having each president's interpretation of the constitutional scope of executive power can be an invaluable tool for understanding the institution's development.

5. 5

   While Bush brought renewed attention to the issue of signing statements, these statements had already been seen as executive aggrandizement (Garber and Wimmer 1987) and a usurpation of constitutional law-making authority (Fisher 1997) long before his presidency.

6. 6

   See Kelley and Marshall (2008) for a more detailed discussion of the politics behind the bill and subsequent signing statement.

7. 7

   In the first few months of his presidency, President Obama issued two controversial signing statements on the American Recovery and Reinvestment Act of 2009 and the Omnibus Appropriations Act of 2009, respectively. Between entering office and the end of 2011, however, President Obama issued just 20 signing statements.

8. 8

   See Senate Committee on the Judiciary (2006) and House Committee on the Judiciary (2007).

9. 9

   See Savage (2006).

10. 10

    Given the popular perception that President Bush's signing statement on the FY 2006 Department of Defense Appropriations bill was a de facto line item veto, it is interesting to note the CIA's nearly opposite response to the signing statement. According to the David Ignatius of the New York Times, the CIA is “said to have stopped interrogating terrorist suspects altogether” until the rules could be further clarified (Ignatius 2006).

11. 11

    In his signing statement, President Bush (2002) said, “the executive branch shall construe section 1514A(a)(1)(B) as referring to investigations authorized by the rules of the Senate or the House of Representatives and conducted for a proper legislative purpose.”

12. 12

    Senator Grassley argued that, “If this is the way the Labor Department intends to enforce the new law, then most corporate whistle-blowers won't be protected” (Lee, 2002).

13. 13

    A 2006 National Journal article reached a similar conclusion about the effect of signing statements on bureaucratic implementation of legislation (Friel 2006).

14. 14

    Both reports were completed at the request of John Conyers, then chairman of the House Judiciary Committee, and Robert Byrd, then chairman of the Senate Appropriations Committee.

15. 15

    The GAO reports are limited to a single administration and a few dozen statutory provisions. As such, the GAO reports do not provide definitive proof of a null effect for signing statements.

16. 16

    Hence, a natural limitation of the signing statement is acknowledged in the assumption that Congress will be able to change any unilateral presidential action that moves policy far enough away from Congress to overcome the costs of passing new legislation.

17. 17

    We employ Howell's (2003) definition of unilateral action because it is explicitly invoked by studies framing presidential signing statements as instances of unilateral action.

18. 18

    Major legislation is a key predictor of the president's proclivity to issues a signing statement (Kelley and Marshall 2008, 2009). This is important because Congress is arguably more likely to not only pay more attention to the implementation of major laws, but it is also much less likely to be indifferent.

19. 19

    For example, presidents have routinely used national security directives, which are “not required to be published in the Federal Register, [are] usually security classified at the highest level of protection, and [are] available to the public after a great many years [have] elapsed” (Relyea 2007, 9), to unilaterally change policy.

20. 20

    For each signing statement, objections were treated as dichotomies (i.e., the statement either included such an objection or not) and coded via the consensus of both authors. Each statement can contain objections from multiple categories, but multiple objections within a single category were not counted for this measure.

21. 21

    For the purposes of description we have placed neutral and negative in the same category. This places the burden of proof more squarely on our claims.

22. 22

    This categorization was created by binning constitutional signing statements into groups by the number of total objections made within a statement.

Appendix: Appendix: Coding Procedure

Each signing statement from the 95th to the 111th Congress was read independently by both authors and coded using the following decision rules. Disagreement was rare (<5%) and differences were resolved via consensus.

Coding Types and Tone

Rhetorical: Rhetorical statements do not cite any violations of presidential power, constitutional infringements, or construe language to provide an interpretation of the legislation. They may, however, make explicit statements about sections of a bill of which the president does not approve. These statements will often include one or more of the following: celebratory remarks, reservations, or a list of desired changes in future legislation.

Constitutional: Constitutional statements contain constitutional objections to or interpretations of one or more sections of a piece of legislation. Constitutional signing statements include situations where language or content is construed by a president to be more in accordance with his interpretation of the law or Constitution as well as situations in which the president claims a more specific violation of presidential powers such as appointment powers, executive powers to oversee the Executive Office of the President, and authority in foreign affairs.

Tone: The tone of each statement was coded as either positive (1) or not (0) with the latter category containing both negative and neutral statements. In most cases, the tone of the statement could easily be deduced by examining the introductory paragraph(s). In the few cases where the president expressed both positive and negative opinions, the statement was coded as if it were negative.

Content Analysis of Constitutional Signing Statements

Interpretation: The president says Congress has overstepped its bounds in some manner, so the president “construes” or otherwise states the he or she will interpret the law in a such a manner as to ensure that it is constitutional. The president does not mention a specific type of infringement.

Intrusion: The president objects to congressional usurpation of executive authority. These claims may be broad (e.g., claims about the unitary executive) or they may be more specific (e.g., legislative vetoes or executive authority over one of the executive level agencies).

Appointments: The president objects to congressional infringement of executive appointment powers. Claims about violations of appointment powers can vary from legislation dealing with from small commissions to high-ranking bureaucrats.

Foreign Affairs: The president objects to congressional intrusion into presidential authority over treaties, the armed forces, negotiations with foreign governments, or other related issues.

Chada: Any mention of the INS v. Chadha (1983) case within an objection.

Biographies

• Ian Ostrander is a Ph.D. candidate at Washington University in St. Louis. His research interests include both presidential and congressional politics.

• Joel Sievert is a Ph.D. student at the University of Georgia. His research focuses on congressional politics and interbranch relations.