In light of the festivities surrounding President Obama’s second inauguration a few weeks ago, I have found myself thinking a lot about unilateral power during his first four years in office. During his first term, Obama did not shy away from acting alone when Congress was unwilling to support his proposals. Yet, the president’s frequent use of direct executive action should not come as a surprise. As political scientists Terry Moe and William Howell claim, the president’s formal capacity to act unilaterally “virtually defines what is distinctively modern about the modern presidency.” While there have been a number of interesting developments over the last few years in this regard, I wanted to spend some time discussing one unilateral tool in particular: the presidential signing statement.
A signing statement is written commentary on a bill that is being signed into law. The scholarly literature has shown that these statements can serve a wide range of purposes (praise, criticism, credit claiming, legislative appeals, etc.). Most controversially, presidents offer their opinion about the constitutionality of various provisions of law and allude to non-enforcement (or altered enforcement in order to avoid constitutional conflicts). President George W. Bush made the constitutional challenges within signing statements (in)famous by citing problems with approximately 1,200 provisions of legislation; double the amount of all the previous presidents combined. Those challenges can be found within Bush’s 112 first-term statements and his 50 second-term statements.
The Obama administration has only issued 22 statements during his first term. While these statements are chock-full of constitutional challenges (Obama’s most recent NDAA signing statement challenges more than 20 sections of law on constitutional grounds), the lack of frequency with which the administration issues them leaves Obama nowhere close to Bush in terms of the number of provisions challenged over a similar timeframe.
Why have we seen fewer signing statements during the Obama administration?
(Side note: anyone interested in this question should keep their eyes peeled for the work of Joel Sievert and Ian Ostrander who recently presented an interesting paper on this topic at the annual meeting of the Southern Political Science Association.)
Roughly speaking, the decline of the signing statement during the Obama administration can be attributed to four interrelated problems that President Obama has faced when aspiring to use this tool:
1. The post-Bush sensitivity problem. President Bush’s use of signing statements to challenge provisions of law was unprecedented in nature. Charlie Savage’s Pulitzer Prize winning coverage of signing statements in The Boston Globe and challenges from legislators helped to raise the public profile of signing statements to all new heights. As a result, these statements became an important symbol of abused power for many observers. When President Obama came into office he vowed to continue the practice with “caution and restraint, based only on interpretations of the Constitution that are well founded.” Nonetheless, not everyone saw his actions as being in accordance with those principles. With every new signing statement came another New York Times article; the signing statement was no longer the quiet and obscure tool of unilateral power that it once was.
2. The YouTube problem. During the 2008 presidential election, candidate Obama did not do himself any favors when he spoke about signing statements. Some of his campaign’s signals were mixed. One exchange in particular has been particularly useful for critics of the administration:
Audience member: “When Congress offers you a bill do you promise not to use presidential signage [sic] to get your way?”
Obama: “Yes…” [He follows this with an explanation of checks and balances, the veto, and his view of the Bush administration’s signing statements.]
Obama: “…we’re not going to use signing statements as a way of doing an end run around Congress…”
As a result of this exchange the use of signing statements has become a bit more of a nuisance for the administration. Every time a statement is used that contains constitutional challenges, YouTube videos of this exchange pop up on blogs and news stories around the Internet.
Another example comes from President Obama’s response to Charlie Savage’s executive power survey in December of 2007. Here the message is a bit mixed, but ultimately the reader is left with the impression that Obama will use signing statements, but that he will not use them in the same manner as the Bush administration. Obama asserts, “No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.”
In the end, the campaign left enough ambiguity for the president to be easily framed as hypocritical once he started issuing signing statements.
3. The fire-alarm problem. Research has shown (gated; earlier ungated version) that the use of signing statements stimulates congressional oversight. It is entirely possible that the Obama administration decided to use other tools of the presidency to avoid the increased scrutiny and publicity (Garvey suggests [gated] that “other interpretive mechanisms” like Statements of Administration Policy and opinions from the Office of Legal Counsel might serve as a partial substitute).
4. The legislation problem. Ultimately, you cannot have signing statements without a bill signing and there has not been much bill signing lately. According to The Washington Post: “…the 112th Congress enacted the smallest number of laws in modern history, fewer than 250 (some are still awaiting presidential action). At least 40 of those were trivial acts such as post office namings or commemorative resolutions.”
The same article points out that the 80th Congress, to which Harry Truman applied the “do nothing” label, “enacted a respectable 906 laws, including the Marshall Plan, one of the most consequential initiatives of the 20th century.”
Signing statements may have fallen slightly out of favor during the last four years because of the baggage that comes along with them. Nonetheless, the Obama administration is still attempting to preserve and extend presidential power through this tool.
Kevin Evans is an Assistant Professor in the Department of Politics and International Relations at Florida International University. His research on signing statements can be found in Presidential Studies Quarterly (gated) and Congress & the Presidency (gated).