The Program in Public Law launched the academic year August 21 with a lunchtime panel discussion on presidential signing statements featuring Professor Eric Posner of the University of Chicago Law School, Professor Trevor Morrison of Cornell Law School, and Duke's Douglas B. Maggs Professor of Law Walter Dellinger.
Moderator Curtis Bradley, Richard and Marcy Horvitz Professor of Law, opened the event by outlining the history of and current controversy surrounding signing statements, short documents that presidents have long issued when they sign bills into law. While often simple statements of political rhetoric, signing statements also are used to assert presidential positions or concerns about the meaning or constitutionality of the legislation being signed in order to guide executive branch action or to influence courts in the event of future statutory challenges, Bradley explained.
A statement President Bush issued in December 2005 on signing the Detainee Treatment Act attracted opposition with its declaration that he would construe the Act's prohibition on the maltreatment of prisoners '"in a manner consistent with the constitutional authority of the president to supervise the unitary executive branch as commander in chief,'" Bradley said. "Some people construe that statement as suggesting that the president was reserving some right not to comply with [the statute's] prohibition on cruel treatment, at least in certain circumstances." An April article in the Boston Globe fueled the controversy with its claim that since he took office, the president had '"quietly claimed the authority to disregard more than 750 laws'"; since then, the American Bar Association has released a task force report critical of signing statements and the Senate Judiciary Committee has held hearings on the subject.
All veterans of the White House Office of Legal Counsel (OLC), the panelists agreed that issuing signing statements, even with great frequency, is a sound institutional practice. "It's a substantive question, not a question about numbers or quantity," said Posner. "You actually have to do the hard work of reading the signing statements, the OLC memoranda, his speeches and those of his predecessors, and try to figure out whether his views of the Constitution are right or not." While all modern presidents have asserted strong views about presidential powers in their statements, "the underlying assumption in the media debate and elsewhere is that Bush has taken extreme positions on executive powers compared to earlier presidents," he said.
Morrison said that while presidents commonly assert executive prerogatives in areas where Congress has not acted, the current administration is distinguished by its "willingness to go the additional step and suggest that legislative restrictions on the way the president might exercise certain of his authorities are simply invalid." It did this, he said, with the OLC's original memorandum on the use of torture, which suggested that a categorical statutory ban on torture and other aggressive interrogation practices would be unconstitutional if it prohibited the president from directing their use in his capacity as commander in chief.
Dellinger, who headed the OLC under President Clinton and whose memoranda relating to signing statements and the president's authority to interpret the constitution are widely cited in the current debate, said presidents have clear authority to decline to execute statutes that in the president's view are unconstitutional. However, he said the current administration has gone "profoundly wrong" by asserting in some signing statements a presidential authority to refuse to comply with acts of Congress that are clearly constitutional in their constraints.
"They have done so by conflating a phrase, 'inherent authority of the president,' which has two different meanings in two different settings," said Dellinger. The president has "sweeping" authority to act when Congress has been silent and there is no legislation restricting the president's abilities, he argued. Had Congress never acted, the president, as commander in chief, could establish a system for disciplining members of the military serving under his command. But, he said, the administration is wrong, in asserting, through its torture memo and other statements, that Congress can't place restrictions on presidential powers in areas where it has legislated. "Once Congress has acted under one of its legitimate heads of authority -- like the authority to regulate the Army, to make rules and regulations regarding the conduct of military forces -- that, to me, is presumptively a constitutional constraint on the president, unless it runs afoul of one of the technical powers of the president, like the appointment authority," said Dellinger.
"Presidential Signing Statements: What is the Problem with Them?" is available as an on-demand webcast