The Law: Presidential Signing Statements and Coordinate Constitutional Interpretation

Abstract

Zivotofsky v. Kerry (2015) highlighted the constitutional tension surrounding the use of executive signing statements, especially with regard to the president's power to conduct foreign affairs. Critics contend that signing statements come perilously close to having the effect of line‐item vetoes, which the Supreme Court declared unconstitutional in Clinton v. City of New York. I suggest that signing statements are simply written manifestations of practices that naturally occur in a system of checks and balances and in a system where executive branch officials may and must interpret the text of legislation. While signing statements may raise the specter of a president who ignores the express will of Congress, this also is a manifestation of the workings of a constitutional system in which Congress and the president share lawmaking power.

Presidential Strategies in Statements of Administration Policy

“…Furthermore, presidents may take positions on legislation as a part of an inter‐branch dialogue to defend their institutional prerogatives by advancing their own conceptualization of the boundaries between the branches. Such motivations have already been attributed to presidential signing statements (Korzi 2011; Rush 2018), which are similar in content to SAPs (Sievert and Ostrander 2017).…”

“…Presidents may also spend time carefully outlining their position when legislation raises constitutional issues between the branches. In this sense, SAPs may serve a function similar to presidential signing statements and serve as part of an interbranch dialogue over the boundaries between the branches (Korzi 2011; Rush 2018). When presidents use a SAP to express a desire to work with Congress on improving legislation, the text may outline these ideas at length.…”