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.