The Legal Significance of Presidential Signing Statements

When he signed the 2006 Defense Appropriations Act, which included a prohibition against torture of detainees in U.S. custody, President Bush issued a signing statement implying that he could disregard the new prohibition in his capacity as commander in chief.

“The executive branch shall construe [the statute], relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief,” he wrote in the December 30, 2005 statement on H.R. 2863.

The use of Presidential signing statements to create a kind of quasi-legislative history intended to influence future judicial rulings is a relatively new and increasingly controversial phenomenon.

“So far as we have been able to determine, Presidential signing statements that purported to create legislative history for the use of the courts was uncommon — if indeed it existed at all — before the Reagan and Bush Presidencies,” according to a 1993 memorandum from the Department of Justice Office of Legal Counsel.

“The Reagan and Bush Administrations made frequent use of Presidential signing statements, not only to declare their understanding of the constitutional effect of the statutory language, but also to create evidence on which the courts could rely in construing such language.”

Among other problems with this practice, “it is arguable that ‘by reinterpreting those parts of congressionally enacted legislation of which he disapproves, the President exercises unconstitutional line-item veto power’.”

See “The Legal Significance of Presidential Signing Statements,” prepared by Assistant Attorney General Walter Dellinger, November 3, 1993.