Tuesday, February 1, 2011
Profs. Neil Kinkopf (Georgia State) and Peter Shane (Ohio State, Moritz) last week posted Signed Under Protest: A Database of Presidential Signing Statements, 2001-2009 (Version 2.0) on SSRN. The paper updates their earlier work on President George W. Bush's signing statements that objected to provisions of laws on constitutional grounds. (Their signing statement index from the earlier work is also posted at The American Constitution Society.)
Joyce Green brings the list of signing statements up to date, through President Obama's most recent signing statement on the defense spending bill earlier this month, at her site, Presidential Signing Statements. (We posted on that most recent signing statement here.)
These signing statements do more than merely object to particular provisions in legislation signed by the President; they also state the President's intention not to enforce or comply with those provisions. They can thus operate, in effect, as a line-item veto--a device that the Supreme Court ruled unconstitutional in Clinton v. City of New York because it violated the Presentment Clause's requirement that legislation pass both houses of Congress and, in the same form, receive the President's signature in order to become law. (Unlike the line-item veto, provisions identified by the President as unconstitutional in signing statements are part of the law. The President just declines to enforce them.)
President Bush was famously vague in his signing statements, often declining to identify the precise basis for his constitutional objection. The practice left observers guessing as to why he judged provisions unconstitutional. President Obama came into office with a commitment to increase transparency in his signing statements--to state the constitutional objection with precision, and to support it with analysis. But even if his signing statements are more transparent, they're often just as aggressive and yield the same result--to in effect nullify a provision of federal law.
Another option: The veto. Presidents could take a lesson from President Andrew Jackson and veto objectionable legislation. This approach has the advantage of fully publicizing the President's constitutional objections and forcing the Congress to deal with them (by, e.g., moving to override). It of course has the disadvantage that many perfectly unbjectionable--and often critical--provisions in lengthy and complicated legislation would get held up while the branches work out the constitutionality of often small and unrelated portions of the legislation.