Democracy in America, part 2: What's wrong with signing statements?

In his first election campaign, President Obama committed to ending this habit of undermining legislation – but he's continued to do it nevertheless.

Stein Ringen
21 October 2014

American democracy has always been messy, rough and unruly. The political process has suffered under rampant manipulation, cheating and corruption. Even so, democracy has delivered and made America not only the world’s supreme power but also its lighthouse socially and culturally. Today, by common consensus, the American political system is dysfunctional and Washington bogged down in gridlock. This week's series of articles by Stein Ringen explores the state of democracy in America, covering gerrymandering and electoral fairness, presidential power and the use of signing statements, court activism and the Supreme Court, the incapacity of Congress, and the health of democracy overall.
The argument of these articles is that the present predicament is new. Dysfunction strikes deeper than good old rough politics. It is not only a matter of disorder in Congress, the presidency and the Supreme Court. Beneath is a problem of power. The disorder that is visible in governance is a result of power being sucked out of the constitutional system and of a political culture that has abandoned inclusiveness and fairness. In a recent interview in London, Hillary Rodham Clinton said (in a matter of fact way), “our democracy is not working” (with Channel 4 News, on July 4 no less). If so, is the consequence not only dysfunction in Washington but also decline for America?

The duty of Congress is to pass such bills as are necessary for the governing of the country. Once passed, the bill goes to the president who either signs it or refuses to sign. If he signs it, the bill becomes law. If not (unless he leaves it to pass into law without his signature), he sends it back to Congress with his objections. Congress can then revise and resubmit or override the president’s veto with a two thirds majority in each chamber. So says the Constitution.

If the president signs a bill into law, he is, as head of the executive, responsible for implementing it so that, according to the Constitution, it ‘be faithfully executed.’ But here is the catch: the president can now sign a bill into law and manipulate his way out of his duty of implementation. He can do that by adding a ‘signing statement’ in which he says that although he has signed the bill into law, he will not implement provisions A, B, and C in it, in other words disregard what he does not like. So he can do this, although the Constitution gives him no such right.

President Reagan was the great innovator in the use of signing statements. Before him, presidents had used them only rarely and mainly for rhetorical purposes. With Reagan, they became a tool of presidential power. He and his successors used signing statements much more frequently and now generally to limit their duty of implementation. President George W. Bush used signing statements to challenge between 700 and 1,200 provisions or sections of bills he signed into law (depending on how challenges are counted). President Obama, in his first election campaign criticised the use of signing statements and committed to ending the habit, but has nevertheless continued their usage. He has done that with more restraint than his predecessor but has not brought conventions back to their pre-Reagan state.

President Reagan signing the Civil Liberties Act into law, 1988.

President Reagan signing the Civil Liberties Act into law, 1988. Densho/Wikimedia. Some rights reserved.

Signing statements are used, setting aside rhetorical bluster, either to disregard sections of a bill on constitutional grounds or to specify how the bill will be understood in implementation. Neither usage is for good reasons. If the president believes a bill is in part unconstitutional, he should refuse to sign it and send it back to Congress. All laws get interpreted in implementation, there is no need to attach any element of that interpretation to the signing of the bill, in a backhanded attempt to dilute the law itself.

The use of signing statements is detrimental to constitutional and democratic procedure:

-       Their usage represents a form of presidential power that is not given by the Constitution. The American Bar Association has branded the substantial use of signing statements “contrary to the rule of law and our constitutional system.”

-       The use of signing statements is to deny Congress the opportunity it has in the Constitution to improve on bills that have shortcomings and to override the president’s veto.

-       It brings a lack of clarity into the state of law. The law of the land should be as decided by Congress as enshrined in its bills. Qualifying statements attached to bills are of ambiguous legal standing and have the effect that it becomes more difficult, even impossible, to know what “the law” is. The experience is that signing statements bring confusion into the interpretation of laws, including court interpretation.

-       The use of signing statements distorts the separation of powers and the constitutional intention of checks-and-balances. It gives the presidency more power than intended in the Constitution.

-       It brings Congressional legislation into disregard and denigrates the meaning of “law.”

-       It undermines Congress’s constitutional standing and powers.

There is an easy solution. Signing statements do much harm and no good, and are not necessary for any good reasons. Congress should outlaw their use (except in extreme emergencies). Attempts in that direction in Congress have however failed, as one would expect from Congress in its current state of paralysis. The previous article, on gerrymandering, explored an old problem in the democratic system that is allowed to persist. The use of signing statements represents a new problem that has crept in and also not been dealt with. This Congress is a legislature that does not even react when its power to legislate is being usurped.

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