The Legal Significance of Presidential Signing Statements ( 1993 )

The Legal Significance of Presidential Signing Statements
M any Presidents have used signing statem ents to make substantive legal, constitutional, or adm inistra­
tive pronouncem ents on the bill being signed. These uses of Presidential signing statem ents gener­
ally serve legitim ate and defensible purposes.
November 3, 1993
M e m o r a n d u m O p i n i o n f o r t h e C o u n s e l t o t h e P r e s id e n t
This memorandum provides you with an analysis of the legal significance of
presidential signing statements. It is addressed to the questions that have been
raised about the usefulness or validity of such statements. We believe that such
statements may on appropriate occasions perform useful and legally significant
functions. These functions include: (1) explaining to the public, and particularly to
constituencies interested in the bill, what the President believes to be the likely
effects of its adoption; (2) directing subordinate officers within the executive
branch how to interpret or administer the enactment; and (3) informing Congress
and the public that the Executive believes that a particular provision would be un­
constitutional in certain of its applications, or that it is unconstitutional on its face,
and that the provision will not be given effect by the executive branch to the extent
that such enforcement would create an unconstitutional condition.1
These functions must be carefully distinguished from a much more controversial
— and apparently recent — use of presidential signing statements, i.e., to create
legislative history to which the courts are expected to give some weight when con­
struing the enactment. In what follows, we outline the rationales for the first three
functions, and then consider arguments for and against the fourth function.2 The
Appendix to the memorandum surveys the use of signing statements by earlier
Presidents and provides examples of such statements that were intended to have
legal significance or effects.
I.
To begin with, it appears to be an uncontroversial use of signing statements to
explain to the public, and more particularly to interested constituencies, what the
1 In addition, signing statem ents have frequently been used for purposes o f little or no legal or c o n stitu ­
tional significance, e.g., to applaud o r criticize the policy behind certain provisions, to advise C ongress how
the President will respond lo future legislation, to condem n practices such as attaching riders to om nibus
bills, to congratulate m em bers o f C ongress or the public w ho have assisted in the b ill’s p assage, and so forth
2 We d o not in this m em orandum attem pt to reach a definitive conclusion on the question w hether the use
o f signing statem ents to create legislative history on w hich the courts are to rely is or is not legitim ate W e
w ould be p leased to provide you w ith further research and analysis on that question should you so desire.
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O pinions o f th e Office o f L egal C ounsel
President understands to be the likely effects of the bill, and how the bill coheres or
fails to cohere with the Administration’s views or programs.3
A second, and also generally uncontroversial, function of presidential signing
statements is to guide and direct executive officials in interpreting or administering
a statute. The President has the constitutional authority to supervise and control
the activity of subordinate officials within the executive branch. See Franklin v.
Massachusetts, 505 U.S. 788, 800 (1992). In the exercise of that authority he may
direct such officials how to interpret and apply the statutes they administer.4 Cf
Bowsher v. Synar, 478 U.S. 714, 733 (1986) (“[interpreting a law enacted by
Congress to implement the legislative mandate is the very essence of ‘execution’ of
the law.”). Signing statements have frequently expressed the President’s intention
to construe or administer a statute in a particular manner (often to save the statute
from unconstitutionality), and such statements have the effect of binding the statu­
tory interpretation of other executive branch officials.5
A third function, more controversial than either of the two considered above, is
the use of signing statements to announce the President’s view of the constitution­
ality of the legislation he is signing. This category embraces at least three species:
statements that declare that the legislation (or relevant provisions) would be uncon­
stitutional in certain applications; statements that purport to construe the legislation
in a manner that would “save” it from unconstitutionality; and statements that state
flatly that the legislation is unconstitutional on its face. Each of these species of
statement may include a declaration as to how — or whether — the legislation will
be enforced.
Thus, the President may use a signing statement to announce that, although the
legislation is constitutional on its face, it would be unconstitutional in various ap­
plications, and that in such applications he will refuse to execute it. Such a Presi­
dential statement could be analogized to a Supreme Court opinion that upheld
3 For ex am p le, on signing the Omnibus C rim e C ontrol and Safe S treets Act o f 1968, President Johnson
e x plained in som e d etail how the w iretapping and eav esd ro p p in g provisions of the bill both agreed w ith and
differed fro m his A d m in istra tio n ’s original p ro p o sals to C ongress, criticized C o n g ress’s decision to sanction
certain law en fo rcem en t eavesdropping and w iretap p in g , ask ed C ongress to reconsider that decision, served
notice that the D epartm ent o f Ju stice would co n tin u e to follow a n arro w er policy o f confining w iretapping
and e a v e sd ro p p in g to n ational security cases o n ly , and urged caution and restraint on the states m exercising
the pow ers th at the bill allo w ed them See I Pub. P apers o f Lyndon B Johnson 726-27 (1968-69). And
President K en n ed y sig n ed an education bill “ w ith extrem e relu ctan ce,” objecting to several provisions, in­
cluding “the co n tin u atio n o f the discrim inatory and in effectiv e non-C om m um st disclaim er affidavit.” Pub.
P apers o f J o h n F. K ennedy 637 (1961)
4 T h e re are, o f co u rse, lim its to this Presidential authority Thus, the President cannot read into the Im m i­
gration and N atio n ality A ct protection for a c la ss o f asylum seekers w hom C ongress did not include am ong
those e lig ib le for asylum S ee M em orandum fo r the A ttorney G eneral, from W alter D ellinger, A cting A ssis­
tant A tto rn e y G en eral, O ffice o f Legal C ounsel at 3 (A ug. 20, 1993)
5 F or ex am p le, w hen signing legislation g o v ern in g the recruitm ent o f agricultural w orkers from M exico,
P residen t K en n ed y m ade c le a r that the L abor D epartm ent w ould ad m inister it so as to protect “the w ages and
w orking c o n d itio n s o f dom estic agricultural w o rk ers.” Pub. P apers o f John F K ennedy at 640 Sim ilarly,
P resident T ru m a n ex p lain ed that the National S ecurity C ouncil w ould m ake broad use o f the pow ers given to
it u n d e r a rid e r to a foreign aid bill restncting trade w ith the C o m m u nist bloc to create exceptions from such
restrictio n s S e e P u b P a p ers o f H arry S. T ru m a n 319 (1951).
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The Legal Significance o f P residential Signing Statem ents
legislation against a facial constitutional challenge, but warned at the same time
that certain applications of the act would be unconstitutional. Cf. Bowen v. Ken­
drick, 487 U.S. 589, 622-24 (1988) (O’Connor, J., concurring). Relatedly, a sign­
ing statement may put forward a “saving” construction of the bill, explaining that
the President will construe it in a certain manner in order to avoid constitutional
difficulties. See FEC v. NRA Political Victor)’ Fund, 6 F.3d 821, 824-25 (D.C.
Cir. 1993) (Silberman, J., joined by Wald, J.) (citing two presidential signing
statements adopting “saving” construction of legislation limiting appointment
power), cert, dismissed, 513 U.S. 88 (1994). This, too, is analogous to the Su­
preme Court’s practice of construing statutes, if possible, to avoid holding them
unconstitutional, or even to avoid deciding difficult constitutional questions.
More boldly still, the President may declare in a signing statement that a provi­
sion of the bill before him is flatly unconstitutional, and that he will refuse to en­
force it. This species of statement merits separate discussion.6
In each of the last three Administrations, the Department of Justice has advised
the President that the Constitution provides him with the authority to decline to
enforce a clearly unconstitutional law.7 This advice is, we believe, consistent with
the views of the Framers.8 Moreover, four sitting Justices of the Supreme Court
have joined in the opinion that the President may resist laws that encroach upon his
powers by “disregard[ing] them when they are unconstitutional.” Freytag v. Com­
missioner, 501 U.S. 868, 906 (1991) (Scalia, J., joined by O’Connor, Kennedy and
Souter, JJ., concurring in part and concurring in judgment).9
6 O ne reason such signing statem ents may be controversial is that the refusal to execute a statutory p ro v i­
sion has substantially the effect o f a line-item veto.
7 See, e.g , The A tto rn ey G e n e r a l’s D u ty to D efen d a n d E nforce C onstitutionally O b jectionable L e g isla ­
tion, 4 A Op O L C 55, 59 (1980) (C iviletti, A G ) ; R ecom m endation that the D epartm ent o f Ju stice not
D efend the C onstitutionality o f C ertain P rovisions o f the B a nkruptcy A m endm ents a n d F ed era l Ju d g esh ip
A c t o f 1984, 8 Op. O .L C 183, 195 (1984). This advice is consistent w ith that given by A ttorneys G eneral to
earlier Presidents, including Presidents B uchanan, see M e m o ria l o f C aptain M eigs, 9 O p A tt'y G en. 462,
469-70 (I8 6 0 ), and W ilson, see Incom e Tax — Salaries o f P resident a n d F ederal J u d g e s, 3 1 O p A tt’y G en
475, 4 7 6 (1919), that the P resident was not bound by a law that unconstitutionally encroached on his pow ers
8 For exam ple, Jam es W ilson, a prom inent Fram er, legal theorist, and later A ssociate Justice o f the S u ­
prem e C ourt, told the P ennsylvania ratifiers that
the pow er o f the C onstitution w as param ount to the pow er o f the legislature acting under that
C onstitution; for it is possible that the legislature . . . m ay transgress the bounds assigned to u,
and an act may pass, in the usual m ode, notw ithstanding that transgression; but w hen it co m es to
be discussed before the ju d g e s . it is their duty to pronounce it void . . In the sam e m anner,
th e P resident o f the U nited S tates co u ld sh ield him self, a n d refuse to carry into effect an a ct that
violates the C onstitution
2 The D ebates in the S evera l State C onventions on th e A doption o f the Federal C onstitution 4 4 6 (Jonathan
Elliot, ed., 2d ed 1836) (third em phasis added).
A lso relevant (despite the fact that he did not attend the Philadelphia C onvention) are the view s o f T h o ­
m as Jefferson. Believing that the Sedition Law was unconstitutional even though it had been upheld by the
courts, Jefferson used his pow er as President to (in his ow n w ords) “rem it the e xecution" o f the A ct by p a r­
doning all offenders See N orm an J. Sm all, Som e P resid en tia l Interpretations o f the P resid en cy 21 (D a
C ap o Press 1970) (1932).
Further, as form er A ttorney General C iviletti has noted, the President refused to com ply w ith the A ct o f
C ongress at issue in M yers v U nited States, 272 J S. 52 (1926), and the S olicitor G eneral argued that that
A ct was unconstitutional. Yet the C ourt ruled that the P resid en t’s action in defiance o f the statute had been
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Opinions o f th e O ffice o f L egal C ounsel
If the President may properly decline to enforce a law, at least when it uncon­
stitutionally encroaches on his powers, then it arguably follows that he may prop­
erly announce to Congress and to the public that he will not enforce a provision of
an enactment he is signing. If so, then a signing statement that challenges what the
President determines to be an unconstitutional encroachment on his power, or that
announces the President’s unwillingness to enforce (or willingness to litigate) such
a provision, can be a valid and reasonable exercise of Presidential authority.10 And
indeed, in a recent decision by the United States Court of Appeals for the District
of Columbia Circuit, FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir.
1993), cert, dism issed, 513 U.S. 88 (1994), the court cited to and relied upon a
Presidential signing statement that had declared that a Congressionally-enacted
limitation on the President’s constitutional authority to appoint officers of the
United States was without legal force or effect. Id. at 824-25.
The contrary view — that it is the President’s constitutional duty not to sign
legislation that he believes is unconstitutional — has been advanced on occasion.
For example, Secretary of State Thomas Jefferson advised President Washington in
1791 that the veto power “is the shield provided by the constitution to protect
against the invasions of the legislature 1. [of] the rights of the Executive 2. of the
Judiciary 3. of the states and state legislatures.” Opinion on the Constitutionality
of the Bill for Establishing a National Bank (Feb. 15, 1791), reprinted in 3 The
Founders’ Constitution 247 (Philip B. Kurland & Ralph Lerner eds., 1987). James
Madison appears to have held a similar view and as President once vetoed a bill on
constitutional grounds even though he supported it as a matter of policy. See 2 A
Compilation o f the M essages and Papers o f the Presidents 569, 570 (James D.
Richardson ed., 1897) (“Messages”) (while praising the bill’s “beneficial objects,”
Madison wrote that he “ha[d] no option but to withhold [his] signature from it”
because he thought it unconstitutional). Jefferson and Madison, however, did not
in fact always act on this understanding of the President’s duties: in 1803 Presi­
dent Jefferson, with Secretary of State Madison’s agreement, signed legislation
appropriating funds for the Louisiana Purchase even though Jefferson thought the
purchase unconstitutional. See 1 William M. Goldsmith, The Growth o f Presiden-
law ful. It g av e rise to n o actio n ab le claim fo r dam ag es under the C onstitution or an A ct o f C ongress in the
C ourt o f C la im s . . .
M y e rs h o ld s that the P resident's c o n stitu tio n al duty does not require him to execute uncon­
stitu tio n a l statu tes; n o r does it require h im to execute them provisionally, against the day they are
d e clared u n co n stitu tio n al by the courts.
4A O p O L .C at 59
10 In deed, m ore b ro ad ly , the President m ay use a signing statem ent as a vehicle to announce his unw ill­
ingness to a ccep t a b latan tly unconsututional statute, even if it d o es not encroach upon his prerogatives, but
o therw ise violates a c o n stitu tio n al mandate. T h e ex ecu tiv e branch has from tim e to tim e challenged A cts o f
C ongress for such reaso n s fo r exam ple, it jo in e d the plaintiffs in U nited S tates v Lovett, 328 U S. 303, 306
(1946), in a tta ck in g an unconstitutional bill o f attainder, and it intervened in S im km s v. M oses H C one
M e m o ria l H o sp ., 211 F. S u p p 628, 640 (M .D N C. 1962), rev 'd , 323 F 2d 959 (4th C ir. 1963), cert denied,
376 U S 938 (1 9 6 4 ), to co n test the constitutionality o f an A ct o f C ongress that provided Federal funding for
racially seg reg a te d hospitals.
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The L egal Significance o f P residential Signing Statem ents
tial Power 438-50 (1974). In light of our constitutional history, we do not believe
that the President is under any duty to veto legislation containing a constitutionally
infirm provision, although of course it is entirely appropriate for the President to
do so.
II.
Separate and distinct from all the preceding categories of signing statements,
and apparently even more controversial than any of them, is the use of such state­
ments to create legislative (or “executive”) history that is expected to be given
weight by the courts in ascertaining the meaning of statutory language. See Marc
N. Garber & Kurt A. Wimmer, Presidential Signing Statements as Interpretations
o f Legislative Intent: An Executive Aggrandizement o f Power, 24 Harv. J. on Le-
gis. 363, 366 (1987). Although isolated examples can perhaps be found earlier,
signing statements of this kind appear to have originated (and were certainly first
widely used) 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 stan­
dard collection of legislative history. Mr. Meese explained the purpose of the
project 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 Con­
gress so that all can be available to the court for future construction
of what that statute really means.
Address by Attorney General Edwin Meese III, National Press Club, Washington,
D.C. (Feb. 25, 1986), quoted in Garber and Wimmer, supra at 367.
We do not attempt finally to decide here whether signing statements may legiti­
mately be used in the manner described by Attorney General Meese. We believe it
would be useful, however, to outline the main arguments for and against such use.
In support of the view that signing statements can be used to create a species of
legislative history, it can be argued that the President as a matter both of constitu­
tional right and of political reality plays a critical role in the legislative process.
The Constitution prescribes that the President “shall from time to time . . . recom­
mend to [Congress’s] Consideration such Measures as he shall judge necessary and
expedient.” U.S. Const, art. II, § 3, cl. 1. Moreover, before a bill is enacted into
law, it must be presented to the President. “If he approve he shall sign it, but if not
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Opinions o f th e O ffice o f L egal C ounsel
he shall return it, with his Objections to that House in which it shall have origi­
nated.” U.S. Const, art. I, § 7, cl. 2.11 Plainly, the Constitution envisages that the
President will be an important actor in the legislative process, whether in originat­
ing bills, in signing them into law, or in vetoing them. Furthermore, for much of
American history the President has de facto been “a sort of prime minister or ‘third
House of Congress.’ . . . [H]e is now expected to make detailed recommendations
in the form of messages and proposed bills, to watch them closely in their tortuous
progress on the floor and in committee in each house, and to use every honorable
means within his power to persuade . . . Congress to give him what he wanted in
the first place.” Clinton Rossiter, The American Presidency 96 (Johns Hopkins
Press 1987) (1956). It may therefore be appropriate for the President, when sign­
ing legislation, to explain what his (and Congress’s) intention was in making the
legislation law, particularly if the Administration has played a significant part in
moving the legislation through Congress. And in fact several courts of appeals
have relied on signing statements when construing legislation. See United States v.
Story, 891 F.2d 988, 994 (2d Cir. 1989) (Newman, J.) (citation omitted) (“though
in some circumstances there is room for doubt as to the weight to be accorded a
presidential signing statement in illuminating congressional intent, President Rea­
gan’s views are significant here because the Executive Branch participated in the
negotiation of the compromise legislation.”); Berry v. Department o f Justice, 733
F.2d 1343, 1349-50 (9th Cir. 1984) (citing President Johnson’s signing statement
on goals of Freedom of Information Act); Clifton D. Mayhew, Inc. v. Wirtz, 413
F.2d 658, 661-62 (4th Cir. 1969) (relying on President Truman’s description in
signing statement of proper legal standard to be used in Portal-to-Portal Act).
On the other side, it can be argued that the President simply cannot speak for
Congress, which is an independent constitutional actor and which, moreover, is
specifically vested with “[a]ll legislative Powers herein granted.” U.S. Const, art.
I, § 1, cl. 1. Congress makes legislative history in committee reports, floor debates
and hearings, and nothing that the President says on the occasion of signing a bill
can reinterpret that record: once an enrolled bill has been attested by the Speaker
of the House and the President of the Senate and has been presented to the Presi­
dent, the legislative record is closed. See Field v. Clark, 143 U.S. 649, 672 (1892).
A signing statement purporting to explain the intent of the legislation is, therefore,
entitled at most to the limited consideration accorded to other kinds of post­
passage legislative history, such as later floor statements, testimony or affidavits by
legislators, or amicus briefs filed on behalf of members of Congress. See Regional
Rail Reorganization A ct Cases, 419 U.S. 102, 132 (1974) (citation omitted) (“post­
passage remarks of legislators, however explicit, cannot serve to change the legis­
lative intent of Congress expressed before the act’s passage. Such statements
11 S ig n ifican tly , the P resid e n t's veto pow er is placed in A rticle I, thereby indicating that he has a share o f
the leg islativ e pow er, ra th e r than in Article II, w hich deals w ith the executive pow er See 1 W illiam C ross­
key, P o litic s a n d the C o n stitu tio n 4 1 9 (1953)
136
The L egal Significance o f P residential Signing Statem ents
‘represent only the personal views of these legislators.’”) (quoting National
Woodwork Manufacturers Ass'n v. NLRB, 386 U.S. 612, 639 n.34 (1967)).12 Fi­
nally, it is arguable that “by reinterpreting those parts of congressionally enacted
legislation of which he disapproves, the President exercises unconstitutional line-
item veto power.” Garber & Wimmer, supra at 376; see also Constitutionality o f
Line-Item Veto Proposal , 9 Op. O.L.C. 28, 30 (1985) (“under the system of checks
and balances established by the Constitution, the President has the right to approve
or reject a piece of legislation, but not to rewrite it or change the bargain struck by
Congress in adopting a particular bill”).
Conclusion
Many Presidents have used signing statements to make substantive legal, con­
stitutional or administrative pronouncements on the bill being signed. Although
the recent practice of issuing signing statements to create “legislative history” re­
mains controversial, the other uses of Presidential signing statements generally
serve legitimate and defensible purposes.
WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel
12 B u t see S ea tra in Shipb u ild in g Corp v S h ell O il Co , 444 U .S 572, 596 (1980) (according “significant
weight'* to post-passage statem ents, particularly ’‘w hen the precise intent o f the enacting C ongress is o b ­
scure” ).
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Opinions o f th e O ffice o f L egal C ounsel
APPENDIX
So far as we have been able to determine, the practice of using presidential
signing statements to create legislative history for the use of the courts was un­
common — if indeed it existed at all — before the Reagan and Bush Presidencies.
However, earlier Presidents did use signing statements to raise and address the
legal or constitutional questions they believed were presented by the legislation
they were signing. Examples of signing statements of this kind can be found as
early as the Jackson and Tyler Administrations, and later Presidents, including
Lincoln, Andrew Johnson, Theodore Roosevelt, Wilson, Franklin Roosevelt, Tru­
man, Eisenhower, Lyndon Johnson, Nixon, Ford and Carter, also engaged in the
practice.
According to Louis Fisher of the Congressional Research Service,
Andrew Jackson sparked a controversy in 1830 when he signed a
bill and simultaneously sent to Congress a message that restricted
the reach of the statute. The House, which had recessed, was pow­
erless to act on the message. A House report later interpreted his
action as constituting, in effect, an item veto of one of the bill’s
provisions. President Tyler continued the custom by advising the
House in 1842 that after signing a bill, he had deposited with the
Secretary of State “an exposition of my reasons for giving it my
sanction.” He expressed misgivings about the constitutionality and
policy of the entire act. A select committee of the House issued a
spirited protest, claiming that the Constitution gave the President
only three options upon receiving a bill: a signature, a veto, or a
pocket veto. To sign a bill and add extraneous matter in a separate
document could be regarded “in no other light than a defacement of
the public records and archives.”
Louis Fisher, Constitutional Conflicts between Congress and the President 128 (3d
rev. ed. 1991) (citations omitted).
President Lincoln stated that he was signing the Confiscation Bill on the under­
standing that the bill and the joint resolution explaining it were “substantially one.”
He attached to his signing statement the draft veto message he had prepared before
the joint resolution was adopted. In that draft, he raised various objections to the
bill, some of which appear to be constitutionally-based. Thus, the draft singled out
a provision that “assumes to confer discretionary powers upon the Executive;” but
Lincoln stated that he would have “no hesitation to go as far in the direction indi­
cated” even without such legislative authority. 8 M essages , supra at 3287; see also
Norman Small, Some Presidential Interpretations o f the Presidency 183 (1932).
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The Legal Significance o f P residential Signing Statem ents
President Andrew Johnson signed but protested against an Army appropriations
bill, claiming that one of its sections “in certain cases virtually deprives the Presi­
dent of his constitutional functions as Commander in Chief of the Army.” 8 Mes­
sages, supra at 3670.
In 1876, when signing a river and harbor appropriations bill that included
“many appropriations . . . for works of purely private or local interest, in no sense
national,” President Grant issued a signing statement saying that “[u]nder no cir­
cumstances will I allow expenditures upon works not clearly national.” 10 Mes­
sages, supra at 4331. On the same day, Grant sent the House another signing
statement relating to an appropriation for consular and diplomatic services that had
in part prescribed the closing of certain consular and diplomatic offices. Grant
objected that “[i]n the literal sense of this direction it would be an invasion of the
constitutional prerogatives and duty of the Executive,” and announced his intention
of construing the section as intended merely “to fix a time at which the compensa­
tion of certain diplomatic and consular officers shall cease, and not to invade the
constitutional rights of the Executive.” Id. at 4331-32.
President Theodore Roosevelt established several volunteer unpaid commis­
sions to investigate certain factual situations and report back their findings to him.
This practice “came to be denounced in Congress as ‘unconstitutional,’ and an
amendment to the Sundry Civil Act of 1909 undertook to forbid the practice. Mr.
Roosevelt signed the measure but proclaimed his intention of ignoring the restric­
tion. “ ‘Congress,’ he argued, ‘cannot prevent the President from seeking advice.’”
Edward Corwin, The President: Office and Powers 67 (1940) (citation omitted).
President Wilson signed a merchant marine bill in 1920, but determined not to
enforce a provision he found unconstitutional. He stated that executing the provi­
sion ‘“ would amount to nothing less than the breach or violation’” of some thirty-
two treaties. See Fisher, supra at 130 (quoting 17 Messages at 8871-72).
In 1941, President Franklin Roosevelt confided an unpublished Presidential le­
gal opinion objecting to the “two-House veto” provision in the Lend Lease bill to
then-Attorney General Robert Jackson. Roosevelt found the provision “clearly
unconstitutional,” but signed the bill as a matter of diplomatic and political neces­
sity. Robert H. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353,
1357 (1953). President Roosevelt also signed the Urgent Deficiency Appropria­
tions Act of 1943, which included a section prohibiting the payment of a govern­
ment salary or other compensation to certain named government employees
deemed to be subversive. While signing the bill because it appropriated funds ur­
gently needed to carry on the war, Roosevelt “‘plac[ed] on record my view that this
provision is not only unwise and discriminatory, but unconstitutional.’” United
States v. Lovett, 328 U.S. 303, 313 (1946).
President Truman issued a statement on the occasion of signing the General
Appropriation Act of 1951 in which he addressed a provision of the bill authoriz­
ing loans to Spain. Truman construed the provision in a manner that avoided what
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Opinions o f ih e O ffice o f L egal Counsel
he thought would be an unconstitutional outcome, declaring that “I do not regard
this provision as a directive, which would be unconstitutional, but instead as an
authorization, in addition to the authority already in existence under which loans to
Spain may be made.” Pub. Papers o f Harry S. Truman 616 (1950).
President Eisenhower sought to put a “saving” construction on a 1959 bill
amending the Mutual Security Act. He stated that
I have signed this bill on the express premise that the three amend­
ments relating to disclosure are not intended to alter and cannot al­
ter the recognized Constitutional duty and power of the Executive
with respect to the disclosure of information, documents, and other
materials. Indeed, any other construction of these amendments
would raise grave Constitutional questions under the historic Sepa­
ration of Powers Doctrine.
Pub. Papers o f Dwight D. Eisenhower 549 (1959). And in 1960, on the occasion
of signing a bill providing for the admission of refugees, Eisenhower noted that
“[t]he Attorney General has advised me that there is a serious question as to
whether this [one-House veto] provision is constitutional,” but declared that “it
would be better to defer a determination of the effect of such possible action [i.e., a
legislative veto] until it is taken.” Pub. Papers o f Dwight D. Eisenhower 579
(1960-61).
On the occasion of signing the Omnibus Crime Control and Safe Streets Act of
1968, President Lyndon Johnson criticized as “vague and ambiguous” certain pro­
visions dealing with Federal rules o f evidence in criminal cases, but stated that the
Attorney General had advised him that those provisions could “be interpreted in
harmony with the Constitution, and Federal practices in this field [e.g., the Federal
Bureau of Investigation’s practice of warning suspects of their constitutional
rights] will continue to conform to the Constitution.” 1 Pub. Papers o f Lyndon B.
Johnson 727 (1968-69).
President Nixon signed a 1971 military authorization bill, but objected to a pro­
vision in it (the Mansfield Amendment, which set a final date for the withdrawal of
U.S. Forces from Indochina) as being “without binding force or effect.” Pub. Pa­
pers o f Richard Nixon 1114 (1971).
President Ford, upon signing the Defense Appropriation, 1976, objected to a
provision of that bill that restricted the Executive’s ability to obligate funds for
certain purposes until it received approval from several Congressional committees.
Ford stated that he could not “concur in this legislative encroachment,” and that
consequently he would treat the restriction “as a complete nullity.” 1 Pub. Papers
o f G erald R. Ford 242 (1976-77).
President Carter issued several signing statements, including statements on the
FY 1980-81 Department of State Appropriations Act, the FY 1981 Department of
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The Legal Significance o f P residential Signing Statem ents
Defense Authorization Act and the International Security and Development Coop­
eration Act of 1980. The first of these cases was a bill which, like the 1876 bill
President Grant had objected to but signed, purported to mandate the closing of
certain consular posts. Carter objected that Congress “cannot mandate the estab­
lishment of consular relations at a time and place unacceptable to the President,”
and accordingly stated his determination to construe the provision as merely
precatory. 2 Pub. Papers o f Jimmy Carter 1434 (1979).
As noted above, the Reagan and Bush Administrations made frequent use of
Presidential signing statements, not only to declare their understanding of the con­
stitutional effect of the statutory language, but also to create evidence on which the
courts could rely in construing such language. See, e.g., President’s Statement on
Signing S. 1200 Into Law, 22 Weekly Comp. Pres. Doc. 1534, 1536 (Nov. 6,
1986) (interpreting language of Immigration Reform and Control Act); President’s
Statement on Signing S. 124 Into Law, 22 Weekly Comp. Pres. Doc. 831, 832
(June 19, 1986) (interpreting language of Safe Drinking Water Act); Issues Raised
by Foreign Relations Authorization Bill, 14 Op. O.L.C. 37 (1990) (provision of
foreign relations authorization bill unconstitutionally infringed on President’s
authority to conduct negotiations; if President chose to sign bill, he would be enti­
tled not to enforce provision); Appointments to the Commission on the Bicenten­
nial o f the Constitution, 8 Op. O.L.C. 200, 201-02 (1984) (discussing Senator
Hatch’s objections to constitutional claims made by President Reagan’s signing
statement on bill).
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