Source of the power The president's power to issue signing statements is based in Article II, Section 1 of the U.S. Constitution, which states that the president "shall take Care that the Laws be faithfully executed..." Signing statements are considered to be one way in which the president faithfully executes the laws passed by Congress. This interpretation is supported by the Supreme Court's 1986 decision in the case of Bowsher v. Synar, which held that "... interpreting a law enacted by Congress to implement the legislative mandate is the very essence of 'execution' of the law."
Purposes and effect of signing statements In 1993, the Department of Justice attempted to define the four purposes for presidential signing statements and the constitutional legitimacy of each:
- To simply explain what the bill will do and how it will benefit the people: No controversy here.
- To instruct the responsible Executive Branch agencies on how the law should be administered: This use of signing statements, says the Justice Department, is constitutional and is upheld by the Supreme Court in Bowsher v. Synar. Executive Branch officials are legally bound by the interpretations contained in presidential signing statements.
- To define the president's opinion of the law's constitutionality: More controversial than the first two, this use of the signing statement typically has one of at least three sub-purposes: to identify certain conditions under which the president thinks all or parts of the law could be ruled unconstitutional; to frame the law in a manner that would "save" it from being declared unconstitutional; to state that the entire law, in the president's opinion, unconstitutionally usurps his authority and that he will refuse to enforce it.
Through Republican and Democratic administrations, the Department of Justice has consistently advised presidents that the Constitution gives them the authority to refuse to enforce laws they believed to be clearly unconstitutional, and that expressing their intent through a signing statement is a valid exercise of their constitutional authority.
On the other hand, it has been argued that it is the presidents constitutional duty to veto and refuse to sign bills he or she believes to be unconstitutional. In 1791, Thomas Jefferson, as the nations first Secretary of State, advised President Washington that the veto is the shield provided by the constitution to protect against the invasions of the legislature [of] 1. the rights of the Executive 2. of the Judiciary 3. of the states and state legislatures. Indeed, past presidents including Jefferson and Madison have vetoed bills on constitutional grounds, even though they supported the bills underlying purposes.
- To create a type of legislative history intended to be used by the courts in future interpretations of the law: Criticized as an attempt by the president to actually invade Congress' turf by taking an active part in the law-making process, this is clearly the most controversial of all the uses for signing statements. The president, they argue, attempts to amend legislation passed by Congress through this type of signing statement. According to the Justice Department, the legislative history signing statement originated in the Reagan Administration.
In 1986, then-Attorney General Meese entered into an arrangement with the West Publishing Company to have presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history. Attorney General Meese explained the purpose of his actions as follows: "To make sure that the President's own understanding of what's in a bill is the same . . . or is given consideration at the time of statutory construction later on by a court, we have now arranged with the West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means."