Bush and the Presidential Signing Statement

DEBBIE ELLIOTT, host:

During the Reagan administration, when Samuel Alito was laying out his views on presidential authority, he seized on the strategic importance of the signing statement. When a president signs a bill into law, he can issue a signing statement with his own interpretation of the measure. For example, when President Bush recently signed legislation banning torture, he added his own statement that the executive branch would follow the new law in a manner, quote, "consistent with the constitutional authority of the president as commander in chief." We've asked Andy Rudalevige, professor of political science at Dickinson College, to explain exactly how much leeway signing statements give presidents in implementing the laws they sign.

Hello, there.

Professor ANDY RUDALEVIGE (Dickinson College): Hi, there.

ELLIOTT: Is the signing statement a way for the president to sidestep the intentions of Congress--for example, when it passed the torture ban?

Prof. RUDALEVIGE: Well, certainly, that's one interpretation, that presidents have tried to give themselves more discretion in the implementation of the law. Some scholars have looked at these as de facto line-item vetoes. The presidents will take a look at provisions within a given statute and decide, `Well, I don't like that one, I don't like that one. I like the rest, and so I'll sign it.' This means the presidents don't have to bear the burden of vetoing a large bill, parts of which they do like, but gives them the opportunity to get their views on the record with regards to pieces of the bill that they disagree with.

ELLIOTT: Does it mean that they don't have to abide by those pieces of the bill? I mean, how does that fit into the system of checks and balances?

Prof. RUDALEVIGE: Well, that's a good question. Certainly, President Bush has been very aggressive in his signing statements. One study found that he had issued more than a hundred statements containing more than 500 different objections to pieces of legislation over his first term. Here, the president has really relied on his claims of constitutional authority. As you mentioned, he's claiming constitutional authority to supervise the unitary executive branch in parts with regards to presidential authority to control the armed forces and, more broadly, his power as commander in chief. Whether that lets the president not follow the law is an open question at the moment, I think. Congress, over time, has not been very aggressive in pushing presidents on these issues. Rarely have these even gone to court.

ELLIOTT: So does this have the force of law? You know, who's to determine who's right, Congress or the president?

Prof. RUDALEVIGE: The courts have often treated these as political questions. They haven't wanted necessarily to get involved. They've seen Congress sort of step back perhaps from some of these and not necessarily wanted to insert themselves. Now there have been cases in the past--there was one case in the Reagan administration, for example, where the signing statement had to do with contracting. And that--the contractor who actually lost out because of that statement did go to court and eventually won. The circuit court scolded the administration.

But where you have very broad assertions, it may never be clear, in fact, when a statute is not being implemented. And these are things that are done sort of within the bowels of the executive branch. Congress would have to be quite aggressive to find out what's going on, and then the courts would have to agree that they have standing to sue over it.

ELLIOTT: Now again and again in this presidential statement that I'm looking at that comes from the White House, you see the words `president's constitutional authority as commander in chief.' What does that mean?

Prof. RUDALEVIGE: Well, that's an open question, as well. Article II of the Constitution is very vague. It gives the president the executive authority. It gives him other specified powers; one of those is the commander in chief power. But most of those powers have come with an asterisk. We've assumed that there needs to be a war in order to exercise the commander in chief power. There needs to be a Senate ratification of treaties or of appointments. And so to rely on the commander in chief power as the president has done is to assert a particular version of that power which is very strong. It's not clear where that power would end logically.

ELLIOTT: So what is the political impact of these statements?

Prof. RUDALEVIGE: Well, the political impact is that they make broad assertions for the president for the direction of policy without the interference or the encroachment, as they see it, of Congress. These are hiding in plain view, in a sense. Right? Nobody pays much attention to them, though they're published in the public papers of the president; they're on the Internet. And the formulaic nature of the language has tended to conceal the very broad claims that are actually being made about what that constitutional authority of the president is.

ELLIOTT: Where did this signing statement come from? Who was the first president to use it?

Prof. RUDALEVIGE: Well, historically, people have traced it back as early as Andrew Jackson, actually, but it's very scattered. There are only perhaps a dozen examples going through the middle of the 20th century. It appears that President Reagan--and especially in his second term, when Edwin Meese became the attorney general--was the first president to use these in a strategic way.

ELLIOTT: And what was Samuel Alito's role in this in the Reagan administration?

Prof. RUDALEVIGE: Well, he was serving in the Office of Legal Counsel, which is the part of the Justice Department that generally drafts these sorts of statements. He was quite aggressive, it appears from the memos that we've seen, in urging this as a presidential strategy as a way both of getting the administration's views into the legal record, and also of managing to get presidential preferences translated directly into policy.

ELLIOTT: How frequently have other presidents used the signing statement compared with, say, President Bush?

Prof. RUDALEVIGE: The studies that I've seen have not quantified exactly their use earlier.

ELLIOTT: Could this be an important issue when you look at, say, the history of the presidency and the future of the presidency in this country?

Prof. RUDALEVIGE: It's certainly a part of a broader trend towards presidential unilateralism. This is something that scholarship is just coming around to realize as important, I think. The jurisprudence on this is very incomplete at this point and will come down to an issue of congressional will. You can't have an imperial presidency without an invisible Congress, and it'll be interesting to see in the years to come--or, really, the weeks to come--whether Congress will seek to shed its recent invisibility.

ELLIOTT: Andy Rudalevige is a professor of political science at Dickinson College and the author of "The New Imperial Presidency: Renewing Presidential Power After Watergate."

Thank you for joining us.

Prof. RUDALEVIGE: It's been my pleasure.

ELLIOTT: You're listening to ALL THINGS CONSIDERED.

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