The Law: President Obama's Signing Statements and the Expansion of Executive Power

Abstract

Barack Obama campaigned for president of the United States on a promise of fidelity to the Constitution and stated that he would not issue any signing statements to revise legislative intent. His vision of the presidency stood in marked contrast to President George W. Bush's actions and seemed to suggest a reversal of the trend toward increased executive powers. We will analyze how and why President Obama has largely continued the unilateral presidential action of his predecessor, despite earlier promises to the contrary, outline why signing statements are not useful governing tools, and offer a solution to abuses of constitutional signing statements that impact appropriations. "The Decider" Returns?In a January 2013 signing statement, President Barack Obama stated that his constitutional powers as president limited him to signing or vetoing a law outright and that he lacked the authority to reject legislative provisions "one by one." Yet he then proceeded in a nearly 1,200 word statement to pick the law apart, section by section, and to effectively challenge many provisions by declaring that they violated his constitutional powers as commander in chief.

The Contemporary Presidency After the Orders: Presidential Memoranda and Unilateral Action

“…Moreover, the memoranda‐orders dyad may parallel that of signing statements and “statements of administrative policy.” Crouch, Rozell, and Sollenberger () suggest the latter may simply be signing statements by another name. Here, the movement toward the more nebulous “statements of administrative policy” may be the result of negative publicity and criticism of the Bush and Obama administrations' use of signing statements (Savage , , ).…”

“…Mayer and others in this area sought to reassess the former “paradigm of the presidential studies literature that [held] that presidents have limited capacity to act unilaterally”(, 445). More recently, scholars have branched out into signing statements (Crouch, Rozell, and Sollenberger ; Kelly and Marshall , ; Korzi ; Ostrander and Sievert ) and proclamations (Bailey and Rottinghaus ; Rottinghaus and Maier ). While these studies do represent an important step toward defining the president's means of acting beyond informal bargaining (which is difficult to observe), the research program as a whole has yet to systematically analyze memoranda use across time.…”

“…Presidential memoranda may be a less politically costly means of action as public and elite awareness of executive orders have increased. Contemporary news coverage of executive orders is ubiquitous, such that the tool immediately evokes potentially damaging questions of “imperial overreach.” Recent events during the first and second terms of the Obama administration indicate that the shift between executive orders and presidential memoranda may mirror the move from signing statements to “statements of administrative policy”—which, as Crouch, Rozell, and Sollenberger () note, perform similar functions without the negative publicity associated with signing statements since the end of the second Bush administration.…”

The Law: The Unitary Executive Theory and President Donald J. Trump

“…The list of ways that Obama emulated Bush is not a short one. First, Obama followed Bush's lead by using signing statements to increase presidential power (Crouch, Rozell, and Sollenberger ; see also Kelley ). As the New York Times argued, Obama failed to keep his word regarding domestic surveillance (Editorial Board ).…”

The Letter of the Law: Administrative Discretion and Obama’s Domestic Unilateralism

“…But must he execute -or defend in court -a law he thinks is actually unconstitutional? This is an area where signing statements, and Statements of Administration Policy issued while a bill is still in the legislative process, have provided means for presidents to provide their own constitutional interpretations and to assert they will manage its text in a way they decide meets Constitutional muster (Crouch, Rozell, and Mitchell 2013) -in the boilerplate, to "interpret and implement these sections in a manner that does not interfere with my constitutional authority" (Obama 2013a). Obama promised in 2008 that he would "not use signing statements to nullify or undermine congressional instructions as enacted into law."…”